Nos. 05-02-00986-CR, 05-02-00987-CR
Opinion issued February 2, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 380-81537-01, 380-81538-01. Affirmed.
Before Chief Justice THOMAS, Justices, FITZGERALD and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
SUE LAGARDE, Justice, Assigned.
Appellant Alicia Evans Dixon was convicted of two securing execution of a document by deception offenses in violation of section 32.46 of the Texas Penal Code. See Tex. Pen. Code Ann. § 32.46(a)(1), (b)(5) (Vernon Supp. 2004-05). In this appeal, appellant raises only one issue: legal sufficiency of the evidence to support her conviction. After a jury found appellant guilty, the trial court judge heard punishment evidence and assessed punishment in each case at ten years' confinement in the penitentiary, probated for ten years, and a $5000 fine. Concluding the evidence is legally sufficient to support each of appellant's convictions, we affirm.
The trial court also ordered that appellant serve thirty days in jail as a condition of her probation and required appellant to perform 160 hours of community service.
Background
Appellant was tried before a jury in a joint trial with her husband, David Wayne Dixon, for two offenses of securing execution of a document by deception. David testified in his own behalf. Appellant did not testify. A third defendant involved in these offenses, John Webber a/k/a James Wear, had pleaded guilty prior to the Dixons' trial. Webber was called to testify at trial, but did not appear. The videotaped interviews of appellant, David, and Webber were all admitted into evidence without objection and played for the jury. Facts developed at trial are the following. Appellant and David owned and operated a swimming pool company, Mercedes Pools, a sole proprietorship. Business had not been good. Both their business and personal finances were in dire straits and they were facing foreclosure of their home. The Dixons had known Webber for about two years. They consulted Webber about generating more business for the swimming pool company. Webber suggested enhancing the company's image by buying newer and better vehicles. A plan was devised for this purpose. Appellant was in charge of the finances of the swimming pool company, which by this time was in bankruptcy. According to Webber, both of the Dixons knew about the general plan, which he described as a "consensus." According to the plan, appellant would find a vehicle she liked, go to a car dealership and purport to have independent financing, sign the required papers, and take possession of the respective vehicle. David recorded a voice mail message on a cellular telephone with a California area code purporting to be a company called ASD Financial. According to Webber, the California area code was David's idea and something Webber had not thought of. The Dixons' local mail drop address was given as the local address for ASD Financial, and their fax number was used. Appellant first went to Ewing Buick in Plano and took possession of a van, following the devised plan. After purporting to have independent financing, appellant dialed the cellular telephone number with the California area code and handed the telephone to the sales person. At the time she did so, appellant knew the call would be answered by either Webber purporting to be James Wear, or the ASD Financial voice mail message that David had recorded. After the sales person was assured financing was in place and payment would be forthcoming, the papers were executed, with the dealership believing the financing was legitimate. After signing the sales agreement and application for certificate of title using the name Alicia Evans, appellant took possession of a van, the purchase price of which was in excess of thirty thousand dollars. Within two weeks of this first transaction, two other vehicles were obtained using this fraudulent scheme, one in Plano and one in Dallas. Days went by with no payments made on any of the three vehicles. Efforts were made to contact Alicia and ASD Financial and demands were made to either return the vehicles or pay for them. When those efforts were ignored, the Lexus dealer in Dallas filed a complaint with the Richardson Police Department. Investigation of that complaint, with the assistance and cooperation of the Plano Police Department, led to the discovery of all three vehicles at the Dixons' home in Plano. Although David was present when the cars were discovered, appellant was not at the house. When the police asked David where appellant was, he said she was at the water tower near their home smoking with a friend. Appellant was discovered in a fenced area of the water tower property "cowering in the corner." Detective MacKenzie testified appellant did not appear to be either visiting with anyone or smoking. When MacKenzie approached the water tower, he asked the workman about appellant. The workman said she had come in a few minutes before and appeared nervous. Upon being found, appellant was told she was under arrest. She stated that times had been bad and they had gotten into trouble. Webber was later found "hiding in a corner" of the Dixons' back yard. He was arrested on outstanding warrants. The Dixons maintained their innocence, claiming they had no knowledge of the illegitimacy of the plan. Their defense was that Webber was a con artist who had deceived them into believing the financing was legitimate. David testified that his only connection was his voice on the ASD Financial recorded voice message. Applicable Law
The standard of review for legal sufficiency of the evidence is well known to this court and to the parties. That standard of review requires this court to examine 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 (1979); Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000). Credibility choices, of course, are within the discretion of the jury. To prove appellant committed the charged offense, the State was required to prove that appellant, with intent to defraud or harm another, by deception, caused another to sign or execute any document affecting property or service or the pecuniary interest of any person. Tex. Pen. Code Ann. § 32.46(a)(1). Intent may be inferred from the acts and conduct of the defendant. See Patrick v. State, 906 S.W.2d 481, 487 (Tex.Crim.App. 1995). The jury was charged on the law of parties. Analysis
Appellant contends she had no intent to defraud or harm any of the dealers. Appellant maintained, as stated in her videotaped interview and in David's videotaped interview, that the purpose of obtaining the cars was to raise the profile of the swimming pool company, and that her intent was to buy now and pay later, after obtaining more pool contracts. Thus, as appellant puts it in her brief, "[f]rom their own testimony it was never their intent to steal the vehicles only to misrepresent the financing until they could pay for them." However, Webber stated in his videotaped interview and a car dealership witness testified that the scheme was to "misrepresent the initial financing." At the conclusion of the punishment phase, the trial judge stated on the record that he did not believe either appellant or David because they had not been honest with the court. Surely the jury, as well, had ample reason to discredit their self-serving statements at trial. Having reviewed all of the evidence in these cases in the light most favorable to the verdict, and drawing reasonable conclusions and logical inferences therefrom, we conclude the evidence is legally sufficient to support the jury's verdicts of guilt. We overrule appellant's sole point of error in each case. We affirm the trial court's judgments.