Thomas v. State

Dissenting Opinion by

Justice BRIDGES.

I respectfully dissent to the majority’s conclusion that the evidence in this case is insufficient to show that appellant sold or offered to sell an “evidence of indebtedness” making him subject to prosecution for securities fraud. On original submission, appellant argued that the transaction at issue could not have involved an “evidence of indebtedness” because only a written document could be a security under the Texas Securities Act (the Act). The State disagreed. Without addressing the issue of whether “evidence of indebtedness” must be in writing, this Court on original submission rejected the Texas Supreme Court’s definition of “evidence of indebtedness” and concluded that “evidence of indebtedness” had to relate to a mortgage certificate. Because the panel found no “evidence of indebtedness” related to a mortgage certificate, a document similar to a mortgage certificate, or real property, the panel reversed the trial court’s judgment.

In vacating this Court’s judgment, the Texas Court of Criminal Appeals held that the correct definition of “evidence of indebtedness” is the definition adopted by the Texas Supreme Court in Searsy v. Commercial Trading Corp., 560 S.W.2d 637 (Tex.1977). Thomas v. State, 919 S.W.2d 427, 432 (Tex.Crim.App.1996). Searsy defines “evidence of indebtedness” as “all contractual obligations to pay in the future for consideration presently received.” Thomas, 919 S.W.2d at 432; Searsy, 560 S.W.2d at 641. Further, the Texas Court of Criminal Appeals has noted that the term “security” should be viewed as flexible enough to meet the countless and variable schemes devised by those who seek the use of money of others on the promise of profits. Thomas, 919 S.W.2d at 432 (quoting S.E.C. v. Thunderbird Valley, Inc., 356 F.Supp. 184, 187 (S.D.S.D.1973)).

In its opinion on remand, the majority narrows the Searsy definition and requires evidence of indebtedness to be a written contractual obligation to pay in the future for consideration presently received. I disagree with the imposition of this additional requirement.

The majority reaches the conclusion that “evidence of indebtedness” must be in writing by examining the term “other evidence of indebtedness” in the context of the other items which precede it in the list of securities: “note, bond, debenture, mortgage certificate.” It is true that “evidence of indebtedness” is a similar type of security as a note, bond, debenture, or mortgage certificate. Thomas, 919 S.W.2d at 432. However, the majority interprets this to mean that because notes, bonds, debentures, and mortgage certificates are written instruments, “evidence of indebt*97edness” must also be reduced to a written contractual obligation to constitute a security.

The majority narrows the definition of “other evidence of indebtedness” and imposes a writing requirement by examining definitions of other “securities.” The majority cites the definitions of note, bond, debenture, and mortgage certificate to support the conclusion that “evidence of indebtedness” must be in writing.' However, such a redefinition is unnecessary because the definition of “evidence of indebtedness” is already conclusively established. It means “all contractual obligations to pay in the future for consideration presently received.” Thomas, 919 S.W.2d at 432 (emphasis added). This definition is not inconsistent with the definitions of notes and bonds. A note is an “absolute promise of signer (ie., maker) to pay to a specified person or order, or bearer, a definite sum of money at a specified time.” Thomas, 919 S.W.2d at 431 n. 6 (quoting Black’s Law Dictionary 1060 (6th ed.1990)). A bond is a “certificate or evidence of a debt on which the issuing company or governmental body promises to pay the bondholders a specified amount of interest for a specified length of time, and to repay the loan on the expiration date.” Id. (quoting Black’s Law Dictionary 178) (emphasis added).

I agree that “evidence of indebtedness” is a type of security similar to a note, bond, debenture, or mortgage certificate, but I believe the similarity is that all of these securities embody a promise to pay, whether or not they are reduced to writing. Significantly, the definition of “bond” distinguishes between “a certificate or evidence of a debt,” indicating that a bond in the form of a written instrument does not preclude the existence of other “evidence of a debt” that would properly be called a “bond.” In the same way, written notes, bonds, debentures, and mortgage certificates do not preclude the existence of “other evidence of indebtedness” that would properly be called a “security.”

The Searsy definition of “evidence of indebtedness” also supports this view. The Searsy definition refers to all contractual obligations, not merely written ones. Thomas, 919 S.W.2d at 432; Searsy, 560 S.W.2d at 641. In a criminal prosecution for violation of securities regulations, a party may be prosecuted in the absence of any writing if the offense involves misconduct in a transaction concerning a purely fictional “security.” See Shappley v. State, 520 S.W.2d 766, 768 (Tex.Crim.App.1974) (criminal liability attached when, in telephone conversation, appellant offered to sell bonds); Sharp v. State, 392 S.W.2d 127, 128 (Tex.Crim.App.1965) (offer to sell nonexistent stock certificates); Sulkow v. Crosstown Apparel, Inc., 807 F.2d 33, 36 (2d Cir.1986) (noting that person who engages in fraud in connection with sale of security may not escape liability under federal securities law simply by refusing to issue written instrument evidencing security). In this context, I do not agree that “evidence of indebtedness” refers only to written “contractual obligations to pay in the future for consideration presently received.” See Thomas, 919 S.W.2d at 432; Searsy, 560 S.W.2d at 641. Such a requirement relies too much on the fact that the other items in the definition of “security” are frequently in writing and ignores the fact that notes, bonds, debentures, mortgage certificates, and “other evidence of indebtedness” all involve a “promise to pay.”

I believe the appropriate focus in this case is on whether the jury could have found that Thomas was contractually obligated to “pay in the future for consideration presently received.” The evidence in this case shows that the complainant Edwards initially gave Thomas a $10,000 check bearing the notation “investment,” and Thomas promised to pay back five times that amount, plus principal, within thirty to sixty days. Edwards ultimately invested a total of $60,000 in exchange for Thomas’s promise to pay a capital gain. Based on this evidence, a reasonable fact *98finder could have found beyond a reasonable doubt that there existed between Thomas and Edwards a “contractual obligation to pay in the future for consideration presently received.” Thomas, 919 S.W.2d at 432; Searsy, 560 S.W.2d at 641. Thus, I would conclude that the evidence is legally sufficient to support Thomas’s conviction.

I would therefore address Thomas’s challenge to the factual sufficiency of the evidence. When we review challenges to the factual sufficiency of the evidence, we view all of the evidence without the prism of “in the light most favorable to the prosecution.” Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App.1996). In conducting this review, we must be appropriately deferential to the fact finder’s determination. Id. at 133. We may not “find” facts or substitute our judgment for that of the fact finder. Id. We review the fact finder’s weighing of the evidence and are authorized to disagree with that determination. Id. However, it is not enough that we believe a different result is more reasonable. Id. at 135. We will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust. Id.

Considering all the evidence without the prism of “in the light most favorable to the prosecution,” it appears that Edwards gave Thomas a $10,000 check and Thomas promised to pay back five times that amount, plus principal, within thirty to sixty days. Edwards invested a total of $60,-000 in exchange for Thomas’s promise to pay a capital gain. As discussed above, Thomas argues that this transaction did not involve a “security” as defined by the Act. Nevertheless, I would conclude this evidence is factually sufficient to establish a “contractual obligation to pay in the future for consideration presently received” between Thomas and Edwards. Thomas, 919 S.W.2d at 432; Searsy, 560 S.W.2d at 641. Thus, the verdict in this case is not so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust. See Clewis, 922 S.W.2d at 135.

As to Thomas’s argument that the documents in evidence could not be “securities” because they were not negotiable or transferable, he has cited no authority imposing such a requirement. Moreover, the Sear-sy definition does not mention negotiability or transferability as part of the analysis for determining whether there is a “security” in the form of “evidence of indebtedness.” Under these circumstances, it does not appear that an evaluation of the negotiability or transferability of the security at issue is a necessary step in determining the sufficiency of the evidence to support Thomas’s conviction. Accordingly, I would overrule Thomas’s first and second points of error.

Thus, I would reach Thomas’s remaining point complaining that the trial court abused its discretion in permitting the State’s expert witness, John Morgan, to testify concerning the existence of a security in this case because the prejudicial effect of Morgan’s testimony outweighed its probative value and the testimony improperly stated a legal conclusion.

As a prerequisite to presenting a complaint for appellate review, the record must show that appellant presented the trial judge with a timely objection stating the specific grounds for the ruling desired unless the grounds are apparent from the objection’s context. See Tex.R.App. P. 33.1(a). In this case, when the State offered Morgan as an expert, counsel for appellant stated that he had “no objection.” Further, appellant’s counsel made no objection to Morgan’s testimony that the transaction at issue, including Thomas’s oral representations, constituted the offer and sale of a security, specifically evidence of indebtedness. Thus, appellant has not preserved his complaints concerning Morgan’s expert testimony for our review. See Tex.R.App. P. 33.1; Cox v. State, 523 S.W.2d 695, 698 (Tex.Crim.App.1975). Accordingly, I would overrule appellant’s *99third point of error and affirm the judgment of the trial court.