Fletcher v. State, Inc.

Full title: WILLIAM JUNE FLETCHER, JR., Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 29, 2010

No. 05-08-01248-CR (Tex. App. Mar. 29, 2010)

Opinion

No. 05-08-01248-CR

Opinion issued March 29, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the 219th Judicial District Court, Collin County, Texas, Trial Court Cause No. 219-81812-06.

Before Justices Morris, O'Neill, and Fillmore.

OPINION

Opinion By Justice MORRIS.

After William June Fletcher pleaded guilty to securities fraud, he was sentenced to ten years' probation. The trial court revoked his probation. He now complains there was insufficient evidence to support the revocation, the trial court erred by allowing certain testimony at the revocation hearing, and one of the terms of his probation failed to give him fair notice of what conduct was prohibited. Concluding appellant's arguments are without merit, we modify the trial court's judgment to reflect the trial court's actual findings and affirm the judgment as modified.

Factual Background

Appellant pleaded guilty to and was convicted of fraudulent selling of securities in an amount greater than or equal to one-hundred thousand dollars. As part of his plea bargain with the State, appellant agreed that his guilty plea in the case "constitutes a material fact with respect to any securities transaction made subsequent to the entry of said plea. . . ." He was sentenced to ten years' probation. Among the conditions of his probation were that he commit no offense against the laws of Texas or the United States, that he not, directly or indirectly, engage in any oil and gas industry promotional activities while on probation, and that he not, directly or indirectly, offer for sale, sell, or otherwise deal in securities "as that term . . . is defined in the Securities Act." In its amended motion to revoke appellant's probation, the State alleged that appellant had violated the condition that he commit no offense against the laws of Texas because he had offered for sale an interest in or under an oil, gas, or mineral lease or an investment contract or other evidence of indebtedness to three different buyers without disclosing to the buyers that he (1) had previously been convicted of securities fraud and was currently serving a sentence of probation, (2) had been ordered to pay $241,161 in restitution in the securities fraud case and the total amount of restitution had not yet been paid, (3) had been ordered by the court in the case not to engage directly or indirectly in any oil and gas industry promotional activities while on probation in the case, and (4) had been ordered by the court not to offer for sale, sell, or otherwise deal in securities as defined in the Securities Act while on probation in the case. See Footnote ¹ The State also alleged that appellant had engaged in oil and gas promotional activities while on probation and did offer for sale, sell, or otherwise deal in securities while on probation. At the hearing on the State's amended motion to revoke, the three buyers testified that appellant sold them oil and gas investments without disclosing to them that he had been convicted of securities fraud and was currently serving probation for the offense. He had also failed to disclose that he was paying restitution in the case and he had been ordered by the court not to engage in any oil and gas industry promotional activities or offer for sale or sell any securities. The director of the enforcement division of the Texas State Securities Board, Joseph Jason Rotunda, testified that the Texas Securities Act enumerates several instruments that are considered securities, including an instrument representing an interest under an oil, gas, or mining lease, an investment contract, and an evidence of indebtedness. An investment contract is an investment of money into a common enterprise with the expectation of profits to be derived from the managerial efforts of others. An evidence of indebtedness is a promise to pay in the future for consideration presently received. After reviewing appellant's investment agreements with the three buyers, Rotunda stated that all three constituted securities, as the term is defined in the Texas Securities Act, in that they were each an evidence of indebtedness, an investment contract, and an interest in or under an oil, gas, or mining lease. Appellant testified in his defense. He stated that he did not dispute the details of his "letter agreements" with any of the three buyers, but felt that the hearing amounted to "splitting hairs over what a promotion is and what a [security] is." He testified,

If you're a promot[e]r, you're making money on the deal you put together, regardless of the outcome of the well. I have never made money on . . . putting the deal together. . . .

. . .

If you're selling undivided working interest in an oil and gas venture, that's a security. In my understanding of this, and if — had I known that this would have come up, I certainly wouldn't have even taken this chance, . . . but to talk to personal friends and acquaintances and industry partners, and having them come in while we lease some property, and then once we tie it up they get their money back and a little oil — or overriding royalty interest in the lease, I did not believe that was a security.

Had I known that, I certainly would [not] have done it. . . .

. . . [F]rom what my securities attorney had told me, I was not promoting or selling securities.

. . .

I am not a securities attorney; I'm an oilman. And I do not believe that doing private deals between two sophisticated credited people constitutes a security.

The trial court found true the State's allegations that appellant had committed an offense against the laws of the State of Texas by failing to disclose his conviction and probation conditions to the three buyers, that he engaged in oil and gas industry promotional activities, and that he offered for sale, sold, or otherwise dealt in securities. At a later hearing on punishment, the court heard testimony from other people who purchased interests in oil and gas securities from appellant and claimed they were defrauded by appellant before he was placed on probation in this case.

Discussion

In his first point of error, appellant complains the trial court erred in revoking his probation because there was legally insufficient evidence to show he sold a security, as that term is defined. Appellate review of a probation revocation is limited to determining whether the trial court abused its discretion. See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). We examine the evidence in the light most favorable to the trial court's findings. See Cardona v. State, 665 S.W.2d 492, 493-94 (Tex. Crim. App. 1984). An order revoking probation must be supported by a preponderance of the evidence, meaning the greater weight of the credible evidence which would create a reasonable belief that a defendant has violated a condition of his probation. See Rickels, 202 S.W.3d at 763-64. In a revocation proceeding, the trial judge is the sole trier of the facts and determines the credibility of the witnesses and the weight to be given to the testimony. See Lee v. State, 952 S.W.2d 894, 897 (Tex. App.-Dallas 1997, no pet.). Here, although appellant disagreed that his agreements with the buyers constituted securities, an expert witness from the Texas Securities Board testified that the agreements did constitute securities and explained why. Based on the record in this case, we cannot conclude the trial court abused its discretion. We overrule appellant's first point of error. In his next point of error, appellant complains the trial court erred in overruling his relevancy objection to the testimony of the witnesses who claimed they were defrauded by appellant before he was placed on probation in this case. Before the testimony, the trial judge commented on the case, "The Court found some of the allegations in the State's motion to be true, and then the disposition was taken under advisement to give both sides an opportunity to present additional evidence and/or argument regarding disposition." Essentially, then, the hearing had become a hearing on appellant's punishment. As noted by the State, at sentencing, evidence may be offered "as to any matter the court deems relevant to sentencing, including . . . 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. . . ." Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2009). Appellant does not dispute the crux of the witnesses' testimony against him. And it is reasonable to believe that the claimed fraudulent acts against other investors provided some guidance about whether he could be continued on probation or whether he should be imprisoned. We conclude the trial court did not abuse its discretion in admitting the testimony and overrule appellant's second point of error. See Ellison v. State, 201 S.W.3d 714, 720-22 (Tex. Crim. App. 2006). In his third point of error, appellant contends the term "oil and gas promotional activities" in his probation conditions was vague and undefined and thereby failed to give him fair notice of what conduct was prohibited. He asserts that because the term was vague the trial court was prohibited from finding that he had violated his probation by engaging in oil and gas promotional activities. Nothing in the record before us shows that appellant objected to this term at the time his probation conditions were imposed. Nor did he ever object to the term at the revocation hearing. Because he did not timely object at trial, he has waived this complaint for appeal. See Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999). We overrule appellant's third point of error. Finally, the judgment revoking appellant's probation recites that the trial court found allegations 1-3 of the State's original motion to revoke community supervision to be true. The court reporter's record, however, makes clear that the trial court actually found allegations 1-3 and 6 and 7 of the State's amended motion to revoke community supervision to be true. See Footnote ² Therefore, on our own motion, we modify the judgment to reflect that the trial court found allegations 1-3 and 6 and 7 of the State's amended motion to revoke community supervision to be true. See Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd). We affirm the trial court's judgment as modified.