COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00451-CR
NO. 02-14-00452-CR
TIFFANY LYNN LEWIS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
TRIAL COURT NOS. 1171316R, 1388094R
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Tiffany Lynn Lewis appeals from her conviction and sentence for
falsely holding herself out as a lawyer and from the revocation of her community
supervision and resulting sentence for misapplication of fiduciary property,
valued between $20,000 and $100,000. See Act of May 29, 1993, 73rd Leg.,
1
See Tex. R. App. P. 47.4.
R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3653 (amended 2015) (current
version at Tex. Penal Code Ann. § 32.45(c)(5)); Tex. Penal Code Ann. § 38.122
(West 2011). In three points, Lewis argues that the evidence is insufficient to
sustain her conviction for falsely holding herself out as a lawyer, that the trial
court abused its discretion by admitting evidence about her disbarment during
punishment, and that the trial court’s stacking of her sentences constitutes cruel
and unusual punishment. We will affirm.
II. BACKGROUND
From December 1995 to April 2005, Lewis was licensed to practice law in
Texas. During that time, she endorsed a check for $78,082.23 that was made
payable to her client; the check represented funds awarded to her client during a
probate proceeding. Lewis pleaded guilty to misapplication of fiduciary property,
valued between $20,000 and $100,000; the trial court found her guilty, sentenced
her to ten years’ confinement and ordered her to pay $58,256.92 in restitution,
suspended imposition of the sentence, and placed her on ten years’ community
supervision. Lewis was ultimately disbarred as a result of the facts underlying
this conviction for misapplication of fiduciary property.
After Lewis was disbarred, she did not notify courts of her disbarment but
instead accepted appointments and appeared in court on behalf of clients. One
of Lewis’s clients during the time when Lewis was disbarred was J.M.2 J.M.
2
To protect the identity of the victim, we use an alias.
2
needed to hire an attorney to find out whether she could obtain money from a lien
she had on her daughter’s house, which had been foreclosed on without notice to
J.M. She contacted a landman who said that he would have an attorney call her.
In response, J.M. received a call from Lewis. J.M. specifically asked Lewis on
the telephone whether she was an attorney, and Lewis said that she was an
attorney. J.M. asked to set up a meeting at Lewis’s office so that she could give
her the paperwork that she had copied from the courthouse deed records, and
Lewis said that she had an associate with an office in Colleyville.
When J.M. met with Lewis, Lewis gave J.M. a contract and stated that the
foreclosure had been done improperly, that Lewis would recover money from
J.M.’s lien on the property, and that Lewis would pursue damages for J.M. and
for her grandchildren.3 Both J.M. and Lewis signed the contract with Lewis
signing as “T. Lewis” above the typed out “Lynaire & Associates.”4 When Lewis
said that she needed a $500 retainer fee, J.M. again asked whether Lewis was
3
J.M.’s daughter, who had owned the home, had passed away, and J.M.
believed that the house belonged to her youngest grandchild.
4
The “Service Agreement” states, among other things, that J.M. retained
Lynaire & Associates (the Firm) to assist her with a real estate/title
search/foreclosure matter; that J.M. agreed to pay a nonrefundable retainer of
$500 “for the Investigating the Title Issue”; that if the Firm assisted J.M. with filing
suit, she agreed to pay a nonrefundable fee of $2,500; and that J.M. had the right
in her sole discretion to terminate The Firm’s representation of her prior to the
conclusion of this matter. The copy of the contract in the record is the copy J.M.
received, which was signed only by Lewis.
3
an attorney, and Lewis said yes. J.M. made her $500 check payable to “Tiffany
Lewis, Attorney at Law.” Lewis negotiated the check.
Sometime later, J.M. became dissatisfied with Lewis’s representation
because J.M. did not feel that any work was being done. J.M. ran an internet
search on Lewis and discovered that she had been disbarred. J.M. called Lewis
and terminated the contract, stating that she had been misled and that she
wanted her money back. Lewis told J.M. that she had referred the case to in-
house attorney Christopher Lewis, but J.M. testified at trial that she had never
met with or spoken to him. J.M. never received a refund of the $500 retainer.
After hearing the above evidence, the jury found Lewis guilty of falsely
holding herself out as an attorney. After hearing punishment-phase evidence of
additional instances in which Lewis falsely held herself out as an attorney and
lied about her identity in various transactions, the jury assessed Lewis’s
punishment at ten years’ confinement and a $10,000 fine. The trial court
sentenced Lewis in accordance with the jury’s recommendation.
After the trial court dismissed the jury, the trial court held a hearing on the
State’s petition to revoke Lewis’s community supervision in the prior
misapplication-of-fiduciary-property case. The State’s motion to revoke Lewis’s
community supervision in the misapplication-of-fiduciary-property case alleged
five new offenses involving fraud or deception and three other violations of her
community-supervision conditions, including that she was over $15,000 in
arrears on her restitution payments. The trial court found all of the allegations to
4
be true, revoked Lewis’s community supervision, sentenced her to ten years’
confinement, and ordered her to pay $42,638.92 in restitution. The trial court
also granted the “State’s Request For Consecutive Or ‘Stacked Sentence,’”
ordering Lewis’s ten-year sentence for falsely holding herself out as an attorney
to run consecutively with her ten-year sentence for misapplication of fiduciary
property. Lewis then perfected this appeal.
III. SUFFICIENT EVIDENCE SUPPORTS LEWIS’S CONVICTION FOR FALSELY HOLDING
HERSELF OUT AS A LAWYER
In her first point, Lewis argues that the evidence is factually5 and legally
insufficient to support her conviction for falsely holding herself out as a lawyer.
Specifically, Lewis argues that the State failed to prove that she held herself out
as a lawyer.
In our due-process review of the sufficiency of the evidence to support a
conviction, 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. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170
5
Regarding Lewis’s challenge to the factual sufficiency of the evidence, the
court of criminal appeals has held that the Jackson standard is the “only standard
that a reviewing court should apply in determining whether the evidence is
sufficient to support each element of a criminal offense that the State is required
to prove beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 912
(Tex. Crim. App. 2010). Accordingly, we apply the Jackson standard of review to
Lewis’s sufficiency point and overrule the portion of her first point raising a
factual-sufficiency challenge.
5
(Tex. Crim. App. 2014). This standard gives full play to the responsibility of the
trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.
A person commits the offense of falsely holding herself out as a lawyer if,
with intent to obtain an economic benefit for herself, the person holds herself out
as a lawyer without currently being licensed to practice law in this state, another
state, or a foreign country and without being in good standing with the State Bar
of Texas and the state bar or licensing authority of any and all other states and
foreign countries where licensed. Tex. Penal Code Ann. § 38.122.
During the trial, Lewis stipulated that when she met J.M., signed the
contract with J.M., and cashed J.M.’s $500 check made payable to “Tiffany
Lewis, Attorney at Law,” she was not licensed to practice law in Texas or any
other state. J.M.’s testimony showed that she believed Lewis was an attorney
based on her words and her conduct. J.M. twice asked Lewis if she was an
attorney, and Lewis responded affirmatively. Lewis also gave J.M. legal
advice—representing that the house legally belonged to J.M.’s grandchild, that
the foreclosure was done incorrectly, that J.M.’s grandchildren should have
received notice of the foreclosure, and that Lewis would go to court to seek
damages on behalf of J.M. and J.M.’s grandchildren. Lewis obtained an
economic benefit when she negotiated J.M.’s check.
6
Despite the above evidence, Lewis argues that the State failed to prove
that she held herself out as a lawyer because (1) J.M. was the only witness who
testified to this element of the offense, (2) Lewis’s initial meeting with J.M. was
not recorded, and (3) no witness corroborated J.M.’s testimony. The record
reflects that throughout cross-examination, J.M. never wavered in her testimony
that Lewis twice told her that she was an attorney, and the defense presented no
controverting evidence. Because Texas Penal Code section 38.122 has no
requirement that a victim’s testimony be corroborated and because the jury is the
sole judge of the weight and credibility of the evidence, the jury was free to
believe J.M.’s testimony even in the absence of corroboration. See Tex. Penal
Code Ann. § 38.122; Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs,
434 S.W.3d at 170; cf. also Celis v. State, 416 S.W.3d 419, 427–28 (Tex. Crim.
App. 2013) (“[T]he [l]egislature has placed the burden of complying with
conditions imposed for the protection of the public upon those who hold
themselves out as lawyers for profit, rather than placing upon the public the
burden of determining whether an individual is qualified and eligible to provide
legal services.”).
Viewing the evidence in the light most favorable to the verdict, the jury
could rationally have concluded beyond a reasonable doubt that Lewis intended
to obtain an economic benefit for herself by holding herself out as an attorney to
J.M. while Lewis was not licensed to practice law. See Jackson, 443 U.S. at 319,
99 S. Ct. at 2789 (setting forth standard of review); Rodriguez v. State, 336
7
S.W.3d 294, 298–300 (Tex. App.—San Antonio 2010, pet. ref’d) (holding
evidence sufficient to establish that appellant held herself out as an attorney
because jury believed victim’s testimony that appellant told him she was an
attorney when they first met); see also Brown v. State, 468 S.W.3d 158, 163–64
(Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) (holding evidence sufficient to
support conviction based on victim’s testimony, emails, and lack of any evidence
that appellant had explained he was not victim’s lawyer). We overrule the
remainder of Lewis’s first point.
IV. NO ABUSE OF DISCRETION IN ADMITTING PUNISHMENT-PHASE EVIDENCE
In her third point, Lewis argues that the trial court abused its discretion
during the punishment phase by admitting evidence of the details surrounding
her disbarment. Lewis objected to the admission of State’s Exhibit 1A, which
included documents from the State Bar Grievance Committee, and asserted that
no appropriate witness with knowledge of the documents had been called to
testify and that this evidence was not relevant.
A. Standard of Review
We review the trial court’s decision to admit or exclude evidence under an
abuse-of-discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex.
Crim. App. 2010), cert. denied, 131 S. Ct. 2966 (2011); De La Paz v. State, 279
S.W.3d 336, 343–44 (Tex. Crim. App. 2009). As long as the trial court’s ruling
falls within the zone of reasonable disagreement, we will affirm the trial court’s
8
decision. Martinez, 327 S.W.3d at 736; Moses v. State, 105 S.W.3d 622, 627
(Tex. Crim. App. 2003).
B. Business-Records Exception
Lewis complains that State’s Exhibit 1A—the disbarment documents from
the State Bar of Texas—was admitted despite an absence of witnesses at trial to
sponsor the disbarment documents.
Rule 803(6) of the Texas Rules of Evidence sets forth an exception to the
hearsay rule. Tex. R. Evid. 803(6). Records of regularly-conducted activity,
more commonly known as business records, may be admitted if the records were
made at or near the time of the event, they were recorded by someone with
knowledge, and it was common practice to keep such a record in the course of
regularly-conducted business. Id. This information is established through the
testimony of the custodian of the business record or other qualified witnesses or
by a business-records affidavit that complies with rule 902(10). Tex. R. Evid.
803(6)(D). A party choosing to verify hearsay business records by affidavit must
file the records with the court and notify the opposing party at least fourteen days
prior to trial. Tex. R. Evid. 902(10).
Here, State’s Exhibit 1A consists of nineteen pages of documents from the
State Bar of Texas related to Lewis’s disbarment.6 A business-records affidavit
6
The disbarment documents include the judgment of disbarment signed
and entered on April 12, 2005; an agreed order of referral for rehabilitation
signed on December 23, 2003; an agreed order of referral for rehabilitation
signed on September 25, 2003; an agreed judgment of private reprimand signed
9
by Maureen Ray as custodian of the records of the State Bar of Texas was
attached to State’s Exhibit 1 and states that it pertains to nineteen pages of
documents from the State Bar of Texas. The records and the affidavit were
timely filed prior to trial. Although the business-records affidavit was not admitted
into evidence as part of State’s Exhibit 1A, the timely-filed, proper business-
records affidavit covered the nineteen pages of documents from the State Bar of
Texas that were included in State’s Exhibit 1A. Consequently, the documents in
State’s Exhibit 1A are authenticated by a rule 902(10) business-records affidavit
and required no extrinsic evidence of authenticity in order to be admitted.7 Tex.
R. Evid. 803(6)(D), 902(10); Reyes v. State, 48 S.W.3d 917, 922 (Tex. App.—
Fort Worth 2001, no pet.) (holding medical records admissible under rules 803(6)
and 902(10) based on substantially-compliant, business-records affidavit). We
hold that the trial court did not abuse its discretion by admitting State’s Exhibit
1A, and we overrule this portion of Lewis’s third point.
C. Relevancy
Lewis further argues that the documents in State’s Exhibit 1A evidencing
her disbarment were not relevant to her punishment because the jury had
already found her guilty of falsely holding herself out as a lawyer.
on September 18, 2002; and agreed findings of fact and conclusions of law
signed on September 18, 2002.
7
Although Lewis raises no challenge to the business-records affidavit or to
the length of time it was on file, the business-records affidavit substantially and
procedurally complied with rule 902(10).
10
Texas Code of Criminal Procedure article 37.07, section 3(a) governs the
type of evidence that is relevant during punishment and provides that
evidence may be offered by the [S]tate and the defendant as to any
matter the court deems relevant to sentencing, including but not
limited to the prior criminal record of the defendant, his general
reputation, his character, an opinion regarding his character, the
circumstances of the offense for which he is being tried, and . . . any
other evidence of an extraneous crime or bad act that is shown
beyond a reasonable doubt by evidence to have been committed by
the defendant or for which he could be held criminally responsible,
regardless of whether he has previously been charged with or finally
convicted of the crime or act.
Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2015). Evidence is
“relevant to sentencing,” within the meaning of the statute, if the evidence is
“helpful to the jury in determining the appropriate sentence for a particular
defendant in a particular case.” Rodriguez v. State, 203 S.W.3d 837, 842 (Tex.
Crim. App. 2006).
Here, the disbarment documents were relevant to sentencing because
they provided evidence of other bad acts involving professional misconduct
committed by Lewis against clients other than J.M. and the punishment that she
had received from the State Bar as a result of her professional misconduct. For
instance, Lewis received a private reprimand for her failure to appear at a
hearing and a trial on behalf of a client who was on trial for a traffic violation.
Such evidence demonstrated that the punishment assessed by the State Bar
against Lewis for various acts of professional misconduct from 2003 through
2005 did not deter Lewis from committing additional bad acts and crimes. The
11
trial court therefore could have reasonably concluded that such evidence would
be helpful to the jury in determining an appropriate sentence for Lewis in this
case. See id.
Because the disbarment evidence was relevant to Lewis’s punishment, we
hold that the trial court did not abuse its discretion by admitting State’s Exhibit
1A. See Tex. Code Crim. Proc. Ann. art. 37.07, §3(a)(1); Rodriguez, 203 S.W.3d
at 842; Bitterman v. State, No. 03-06-00386-CR, 2007 WL 2462018, at *3 (Tex.
App.—Austin Aug. 28, 2007, pet. stricken) (mem. op., not designated for
publication) (holding evidence of uncharged crimes relevant at sentencing); cf.
Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999) (holding that
sentences assessed for prior convictions are relevant to the jury’s determination
of the appropriate sentence). We overrule the remainder of Lewis’s third point.
V. CONSECUTIVE SENTENCES DO NOT CONSTITUTE
CRUEL AND UNUSUAL PUNISHMENT
In her second point, Lewis argues that the trial court’s imposition of
consecutive ten-year sentences constitutes cruel and unusual punishment and is
prohibited by the Texas constitution and the United States Constitution.8 We will
not disturb a trial court’s punishment decision “absent a showing of abuse of
discretion and harm.” Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App.
1984); see Tex. Code Crim. Proc. Ann. art. 42.08(a) (West Supp. 2015).
8
Lewis preserved this issue by specifically raising it in her motion for new
trial.
12
Generally, a sentence is not cruel, unusual, or excessive if it falls within the range
of punishment authorized by statute. Id. Even if a sentence falls within the
statutory range for that crime, however, it must be proportional to the crime.
Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 3009 (1983). “Outside the
context of capital punishment, successful challenges to the proportionality of
particular sentences have been exceedingly rare.” Rummel v. Estelle, 445 U.S.
263, 272, 100 S. Ct. 1133, 1138 (1980).
In addressing an Eighth Amendment disproportionality complaint, we first
compare the gravity of the offense against the severity of the sentence. Moore v.
State, 54 S.W.3d 529, 542 (Tex. App.—Fort Worth 2001, pet. ref’d). Only after a
determination that the sentence is grossly disproportionate to the offense do we
proceed to consider other factors. Moore, 54 S.W.3d at 541.
Comparing the gravity of the offenses against the severity of her
consecutive sentences,9 we conclude that, given the nature of the offenses and
the punishment ranges,10 as well as Lewis’s past conduct while on probation—
9
Although Lewis argues that her two consecutive ten-year sentences were
grossly disproportionate to her crimes, “particularly in light of her substantial
involvement in her daughter’s life, trauma suffered during her life, and maximum
sentences already imposed in both cases,” our comparison of the gravity of the
offenses against the severity of the punishment assessed does not include
consideration of mitigating factors. See, e.g., Harmelin v. Michigan, 501 U.S.
957, 994–95, 111 S. Ct. 2680, 2701 (1991) (disregarding mitigating factors raised
by appellant when conducting Eighth Amendment analysis in which appellant
was sentenced to life in prison without the possibility of parole).
10
Here, both of the individual sentences were within their respective
statutory maximums. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01,
13
which included committing additional offenses involving fraud, dishonesty, and
deception and failing to make numerous monthly restitution payments for the
money she spent from her clients’ probate-court settlement—Lewis’s consecutive
sentence of twenty years’ confinement was not unconstitutionally
disproportionate punishment for the offenses for which she was convicted.11
See Moore, 54 S.W.3d at 542–43; see also Stevens v. State, 667 S.W.2d 534,
538 (Tex. Crim. App. 1984) (holding cumulation of sentences did not constitute
cruel and unusual punishment). See generally Carney v. State, 573 S.W.2d 24,
27 (Tex. Crim. App. 1978) (“There is no ‘right’ to a concurrent sentence . . . .”).
Lewis has not shown that the trial court abused its discretion by ordering her
sentences to run consecutively. We overrule Lewis’s second point.
1993 Tex. Gen. Laws 3586, 3653 (amended 2015) (stating that misapplication of
fiduciary property valued at the amount taken by Lewis is a third-degree felony);
Tex. Penal Code Ann. § 38.122(b) (stating that falsely holding oneself out as a
lawyer is a third-degree felony); Tex. Penal Code Ann. § 12.34 (West 2011)
(providing that punishment range for a third-degree felony is imprisonment for a
term of two to ten years and a fine not to exceed $10,000); Barrow v. State, 207
S.W.3d 377, 380–81 (Tex. Crim. App. 2006) (“The [l]egislature has charged the
trial court with the determination of whether to cumulate, and the trial court is free
to make this determination so long as the individual sentences are not elevated
beyond their respective statutory maximums.”).
11
Even if we determined a disproportionality did exist between the gravity
of Lewis’s offenses and the punishments assessed, there is no evidence in the
record reflecting sentences imposed for similar offenses on criminals in Texas or
other jurisdictions by which we could address the next two factors in an Eighth
Amendment cruel-and-unusual-punishment analysis. See Solem, 463 U.S. at
292, 103 S. Ct. at 3011.
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VI. CONCLUSION
Having overruled Lewis’s three points, we affirm the trial court’s judgments.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 3, 2015
15