Opinion
05-22-00681-CR
10-06-2023
APRIL SHARON GREEN, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish TEX. R. APP. P. 47.2(b)
On Appeal from the 363rd Judicial District Court Dallas County, Texas Trial Court Cause No. F17-33765-W
Before Justices Partida-Kipness, Reichek, and Breedlove
MEMORANDUM OPINION
MARICELA BREEDLOVE, JUSTICE Opinion by Justice Breedlove
A jury convicted appellant April Sharon Green of theft. The trial court sentenced appellant to two years' confinement in state jail, then suspended the sentence and placed her on community supervision for five years. In three issues, appellant contends the evidence is insufficient to support her conviction because she made a reasonable mistake of fact; the trial court erred by refusing to instruct the jury on the burden of proof regarding mistake of fact; and the judgment should be reformed to reflect the attorneys who appeared for the parties at trial.
Concluding that there was sufficient evidence to support the jury's verdict and the trial court did not err by overruling appellant's objection to the charge, we affirm the trial court's judgment. The State agrees that the judgment should be reformed; accordingly, we sustain appellant's third issue, reform the judgment to reflect correctly the counsel who appeared at trial, and affirm the judgment as reformed.
Background
Appellant's former employer contacted police after appellant failed to repay a $9,170 overpayment in her final pay check. Appellant was indicted for theft of property with a value of $2500 or more but less than $30,000, and the case proceeded to a jury trial. See TEX. PENAL CODE ANN. § 31.03(e)(4)(A). Appellant and two other witnesses testified to the facts we summarize here.
In 2016, appellant worked on a short-term project for Advantium Capital under a written contract dated August 16, 2016. She was a Pre-Foreclosure Data Analyst for Advantium's Home Affordable Foreclosure Alternative (HAFA) program. Appellant was paid $18.00 per hour for her work. She was paid by direct deposit to her bank, BB&T.
When the contract ended on October 12, 2016, appellant requested a check for her remaining wages in order to pay bills before the regular direct deposit could be made two weeks later. Chetan Patel, the managing director of Advantium, wrote appellant a check on October 14, 2016, using Quickbooks. Appellant was owed $1,026 for her last pay period, but Patel accidentally wrote the check for $10,216, an overpayment of approximately $9,000. This overpayment was more than twice the total amount-approximately $4,000-that appellant earned under the Advantium contract. Her prior payments from Advantium were for $666.66, $990, and $1404, and she testified that she expected to receive approximately $1000 for her final check.
Appellant testified that when she saw the amount of the check, she asked Patel if all of the money in the check was for her, and he smiled and said it was. Appellant had worked in the mortgage industry for over a decade, was familiar with it, knew bonuses were common, and had received a $7,000 bonus when working for another company in the industry. Further, although appellant knew Advantium did not pay bonuses to analysts in the HAFA program, she testified that she had begun to assist Advantium's underwriters, who did receive bonuses. Accordingly, appellant testified that she believed the additional money in her final check was a bonus.
Patel testified that he did not notice the error and did not learn of his mistake until the bank called Advantium later that day or the day following. Meanwhile, appellant took the check to BB&T, but upon learning that there would be a charge for cashing it, she proceeded to Bank of America, the bank on which the check was drawn. She opened a new account in her own name, deposited the check, and requested a debit card. The same day, she went shopping at North Park mall, purchasing a Louis Vuitton purse for $1,694.11. She made additional purchases at True Religion for $488.18 and BeBe Store, Inc. for $277.12, and withdrew $500.00 cash. These purchases were made on the debit card she obtained at Bank of America. The total amount of these transactions was $2,959.41. Appellant described her purchases as "ordinary."
Patel testified that he attempted to contact appellant by phone and text message, subsequently hired a law firm to prepare a demand letter, and finally referred the matter to police. The State did not offer any phone, text, or email records evidencing Patel's attempts to contact appellant, and Patel admitted appellant had used a different email address to contact him on a previous occasion. He testified, however, that he used the number, email, and address from appellant's employment file. Patel testified that appellant did not respond to any of his calls or texts or to the demand letter.
Detective William Kiernat of the Irving Police Department testified that when he was assigned to the case, he called appellant to discuss Advantium's complaint. He explained that "[a] lot of times these-these cases can be resolved with a phone call, where someone's willing to pay back the money." A recording of the telephone call was played for the jury. Kiernat testified that appellant "sounded like she was aware of the situation," but she told Kiernat that the account was frozen at the bank. She stated that she had an attorney, but she refused to provide the attorney's number to Kiernat and refused to discuss the matter any further.
When Kiernat was unsuccessful in resolving the matter with appellant, he proceeded to subpoena records from Bank of America. He explained that appellant had control of the funds when they were deposited into her new account there. He testified to appellant's purchases made on the debit card and explained that "eventually the bank closed the account and cashed out" with a cashier's check payable to appellant in the amount of $7,057.83. He testified that appellant "got all the money" when the check was negotiated at another bank on November 29, 2016.
Kiernat concluded that appellant intended to keep the money "[b]ased on her phone call, based on the fact that she made no effort to contact me to tell her side of the story, or to have her attorney contact me to provide an-an explanation or justification." He testified that he believed appellant was on notice of the overpayment even before the date of his call, and that she lied to him when she told him that she never got the money because the account was frozen.
In closing, appellant's counsel argued that "if [appellant] reasonably believed that that money was hers, that it was her bonus, that she earned it, and . . . her belief in that was reasonable, you have to find her not guilty." The trial court instructed the jury to acquit appellant if it found that appellant "through mistake formed a reasonable belief about a matter of fact, to-wit: THAT DEFENDANT BELIEVED SHE WAS THE OWNER OF THE PROPERTY, TO WIT: MONEY, which mistaken belief negated the kind of culpability required for the commission of the offense."
The jury found appellant guilty of the offense of "theft the value of $2,500 or more but less than $30,000, as alleged in the indictment." This appeal followed.
1. Sufficiency of the evidence
In her first issue, appellant contends the evidence is insufficient to support her conviction because she made a reasonable mistake of fact. In determining whether the evidence is sufficient to support a criminal conviction, we apply well-established standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). We view the evidence in the light most favorable to the verdict and determine whether a rational jury could have found all the elements of the offense beyond a reasonable doubt. Id.; Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). The jury, as the fact-finder, may make reasonable inferences from the evidence presented at trial in determining appellant's guilt. Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007). Circumstantial evidence is as probative as direct evidence in establishing guilt. Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). When there is conflicting evidence, we presume the factfinder resolved those conflicts in favor of the verdict and defer to that resolution so long as it is supported by the evidence. Jackson, 443 U.S. at 326; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
We also defer to the trier of fact's determinations of the witnesses' credibility and the weight to be given their testimony. Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899. Our role as an intermediate appellate court is restricted to guarding against the "rare occurrence when a factfinder does not act rationally." Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) (quoting Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009)).
Appellant was convicted of theft. Penal code § 31.03(a) provides that a person commits the offense of theft if she "unlawfully appropriates property with intent to deprive the owner of property." TEX. PENAL CODE ANN. § 31.03(a). "A person acts intentionally, or with intent, with respect to the nature of [her] conduct or to a result of [her] conduct when it is [her] conscious objective or desire to engage in the conduct or cause the result." Id. § 6.03(a).
Mistake of fact is a defense to prosecution. TEX. PENAL CODE ANN. § 8.02(a) (“It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.”). The mistake-of-fact defense must be based on a “reasonable belief about a matter of fact.” Id.; see Gant v. State, 814 S.W.2d 444, 451-52 (Tex. App.-Austin 1991, no pet.) (defendant's mistaken belief must be reasonable). The Texas Penal Code defines a “reasonable belief” as one that “would be held by an ordinary and prudent man in the same circumstances as the actor.” TEX. PENAL CODE ANN. § 1.07(a)(42).
If the defendant's mistaken belief would negate the culpable mental state required for the offense, then the defendant is entitled to an instruction on mistake. See Celis v. State, 416 S.W.3d 419, 430-31 (Tex. Crim. App. 2013). "[A]n accused has the right to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of the evidence." Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). Once the defendant offers some evidence to support her defense, the State has the burden of persuasion to disprove the defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991). The burden of persuasion does not require the production of evidence but, instead, requires only that the State prove its case beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913-14. The jury's finding of guilt is an implied finding against the defensive theory. Zuliani, 97 S.W.3d at 594. When an appellant challenges the sufficiency of the evidence involving the defense of mistake of fact, the reviewing court must view all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found against the appellant on the mistake-of-fact issue beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914.
Citing her own testimony that it was normal in the mortgage industry to receive bonuses, she had received a $7,000 bonus in the past, and $9,000 bonuses were not unusual, appellant argues she reasonably believed she had been given a bonus. She argues this reasonable belief negated the element of intent so that "the jury could not have found the essential elements of the offense beyond a reasonable doubt."
The State responds that the jury acted rationally in making its finding. See Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App. 2018) ("A court's role on appeal is restricted to guarding against the rare occurrence when the factfinder does not act rationally."). The jury could believe evidence that Patel made a typographical error in the amount of the check, the overage belonged to Advantium, and Advantium made demands for the return of the money. The jury also heard evidence that appellant opened a new bank account to obtain access to the funds on the same day she received the check, then spent or withdrew $2,959.41 of the funds on the same day. The amount of the check was more than twice the total amount she received for all of the time she worked for Advantium. She knew that Advantium did not pay bonuses to analysts in the HAFA program to which she was assigned. Kiernat testified "it sounded like she was aware of the situation" when he telephoned her about the funds, telling him "I know what you're talking about," and telling him that the bank had frozen her account. She declined to offer any explanation to Kiernat or to respond to any of the demands for repayment of the funds.
Reviewing all of the evidence in the light most favorable to the jury's verdict, we conclude that a rational trier of fact could have found, beyond a reasonable doubt, that appellant "unlawfully appropriate[d] property . . . with the intent to deprive the said owner of the said property," and did not "through mistake form a reasonable belief" that "she was the owner of the property." See Saxton, 804 S.W.2d at 914. Accordingly, we overrule appellant's first issue.
2. Jury charge
At trial, appellant requested "the Texas pattern criminal jury charge" for "burden of proof for the defense of mistake of fact" to be included in the court's charge. The trial court refused the request. In her second issue, appellant contends the following instruction should have been given to the jury:
The defendant is not required to prove that he made a mistake of fact. Rather, the state must prove, beyond a reasonable doubt, that the defendant did not make a mistake of fact constituting a defense.See Comm. on Pattern Jury Charges, State Bar of Texas, Texas Pattern Jury Charges: Criminal Defenses PJC 22.7 (2018).
Appellant contends that by refusing this instruction, the trial court failed to inform the jury that the State bore the burden to prove lack of mistake. She argues that the jury was confused about the mistake of fact defense, citing a note the jury sent out during deliberations, stating "We are not unanimous decided [sic] in our decision. What happen[s] if we cannot come to a conclusion[?]" She emphasizes that a finding of mistake would have negated her intent and accordingly, her culpability. Accordingly, she contends the trial court's error was harmful. The State responds that the trial court acted within its discretion when it denied appellant's requested instruction and properly instructed the jury on the burden of proof.
"[T]he jury is the exclusive judge of the facts, but it is bound to receive the law from the court and be governed thereby." TEX. CODE CRIM. PROC. ANN. art. 36.13. The trial court "shall . . . deliver to the jury . . . a written charge distinctly setting forth the law applicable to the case." Id. art. 36.14. "The trial court must instruct the jury on statutory defenses, affirmative defenses, and justifications whenever they are raised by the evidence in the case." Maciel v. State, 631 S.W.3d 720, 722 (Tex. Crim. App. 2021). "A defendant is entitled to an instruction on every defensive issue raised by the evidence, regardless of whether the evidence is strong, feeble, unimpeached, or contradicted, and even when the trial court thinks the testimony is not worthy of belief." Id. (internal quotation omitted). When reviewing a trial court's ruling denying a requested defensive instruction, we view the evidence in the light most favorable to the defendant's requested instruction. Id. "Our first duty in analyzing a jury-charge issue is to decide whether error exists." Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). "Then, if we find error, we analyze that error for harm." Id. Jury charge error requires reversal when the defendant has properly objected to the charge and we conclude there is "some harm" to her rights. Id. (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). Neither the State nor the defendant has a burden to prove harm. See Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). However, the reviewing court must find that the defendant "suffered some actual, rather than merely theoretical, harm from the error." Id. (internal quotation omitted). We examine the charge as a whole in our review. Id.
"When an accused creates an issue of mistaken belief as to the culpable mental element of the offense, he is entitled to a defensive instruction of 'mistake of fact.'" Granger v. State, 3 S.W.3d 36, 41 (Tex. Crim. App. 1999) (internal quotations omitted); see TEX. PENAL CODE ANN. § 8.02(a) (mistake of fact). “If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.” TEX. PENAL CODE ANN. § 2.03(d).
The trial court instructed the jury:
MISTAKE OF FACT AND APPLICATION
It is a defense to prosecution that the defendant through mistake formed a reasonable belief about a matter of fact if her mistaken belief negated the kind of culpability required for commission of the offense.
"Reasonable belief" means a belief that would be held by an ordinary and prudent man in the same circumstances as the actor.
Now, therefore, if you find and believe from the evidence beyond a reasonable doubt that the defendant committed the acts as alleged in the indictment, but you further find, or have a reasonable doubt thereof, that the defendant through mistake formed a reasonable belief about a matter of fact, to-wit: THAT DEFENDANT BELIEVED SHE WAS THE OWNER OF THE PROPERTY, TO WIT: MONEY, which mistaken belief negated the kind of culpability required for the commission of the offense, you will acquit the defendant of the offense charged in the indictment and say by your verdict "not guilty."
The charge continued, PRESUMPTIONS AND BURDEN OF PROOF
All persons are presumed to be innocent, and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that a person has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at trial. The law does not require a defendant to prove his innocence or produce any evidence at all. The presumption of innocence alone is enough to acquit the defendant, unless the jurors
are satisfied beyond a reasonable doubt of the defendant's guilt after a careful and impartial consideration of all the evidence in the case.
The prosecution has the burden of proving the defendant guilty, and it must do so by proving each and every element of the offense charged beyond a reasonable doubt; and if it fails to do so, you must acquit the defendant.
It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof exclude all "reasonable doubt" concerning the defendant's guilt.
The State relies on the instructions quoted above as well as the initial application paragraphs in the charge to support its argument that the trial court did not err by refusing the requested instruction:
APPLICATION PARAGRAPHS
Now, bearing in mind the foregoing instructions, if you unanimously find from the evidence beyond a reasonable doubt that on or about October 14, 2016, in Dallas, County, Texas, the defendant, APRIL SHARON GREEN, did pursuant to one scheme and continuing course of conduct, unlawfully appropriate property, i.e., acquire and exercise control over property, to wit: MONEY, the aggregate value of which was $2,500 or more but less than $30,000, without the effective consent of CHETAN PATEL AND ADVANTIUM CAPITAL, the owner of the said property, and with intent to deprive the said owner of the said property, then you will find the defendant guilty of theft, as charged in the indictment.
If you do not so find, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict "not guilty."
The charge instructed the jury to acquit appellant if the State failed to prove, beyond a reasonable doubt, that appellant appropriated Avantium's property "with intent to deprive" Avantium of the property. The charge further instructed the jury that if it found or had a reasonable doubt that appellant "through mistake formed a reasonable belief" that "she was the owner of the property," then "you will acquit the defendant." This paragraph was followed by instructions that "[t]he law does not require a defendant to prove his innocence or produce any evidence at all," and "[t]he prosecution has the burden of proving the defendant guilty, and it must do so by proving each and every element of the offense charged beyond a reasonable doubt; and if it fails to do so, you must acquit the defendant." Nothing in these instructions placed any burden of proof on appellant.
In Goodson v. State, No. 05-15-00143-CR, 2017 WL 1360193, at *10-11 (Tex. App.-Dallas Apr. 12, 2017, pet. ref'd) (mem. op., not designated for publication), we considered a similar argument regarding jury instructions on selfdefense. The appellant argued the trial court erred by failing to instruct the jury that the State had the burden of disproving self-defense beyond a reasonable doubt. See id. at *10. There, as here, the trial court instructed the jury about the State's burden of proof, the presumption of innocence, and the requirement that the jury acquit if the State did not meet its burden. Id. at *11. As here, the jury was instructed that the defendant had no burden to prove innocence or to produce any evidence at all. Id. The charge "required the jury to acquit appellant if they believed that he was acting in self-defense or the jury had a reasonable doubt thereof"; similarly here, the charge required the jury to acquit appellant if they believed or had a reasonable doubt that she "through mistake formed a reasonable belief about a matter of fact." See id. We concluded that "[o]n this record . . . the charge of the court was not erroneous." Id. at *12.
Further, in Willis v. State, 802 S.W.2d 337, 340 (Tex. App.-Dallas 1990, pet. ref'd), we considered whether an error in the charge on mistake of fact warranted reversal. The abstract portion of the charge was "technically erroneous" because it did not include the statutory definition of mistake of fact. Id. We explained, however, that "a reversal is not in order if the charge encompasses the substance of the mistake of fact defense." Id. Where the charge included language "sufficient to require the jury to find appellant not guilty if they found that he did not have knowledge that the property was stolen or if they had a reasonable doubt that he did not have knowledge the property was stolen," we concluded "the charge as given by the trial court sufficiently encompassed the substance of appellant's mistake of fact defense." Accordingly, we concluded the error in omitting the statutory definition in the abstract portion of the charge was harmless. Id.
As in Goodson and Willis, we conclude "the charge as given by the trial court sufficiently encompassed the substance of appellant's mistake of fact defense," id., and required the jury to acquit if they believed or had a reasonable doubt that appellant "through mistake formed a reasonable belief" that she was the owner of the property, see Goodson, 2017 WL 1360193, at *10-12.
Further, we assume the jury followed these instructions in the absence of evidence that the jury was actually confused by the charge. Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996); see also Branum v. State, 535 S.W.3d 217, 229 (Tex. App.-Fort Worth 2017, no pet.) (citing Ekern v. State, 200 S.W.2d 412, 415 (Tex. Crim. App. 1947), for the proposition that the charge "should be taken and considered as a whole; and an ordinary jury is expected to and surely does take the charge as a whole and considers it as such"). Appellant relies on the jury's note that they were "not unanimous" to argue that the jury must have been confused. But nothing in the note reflects any confusion about the burden of proof, and the jurors subsequently resolved their disagreement and reached a unanimous verdict. See Goodson, 2017 WL 1360193, at *12 (trial court's response to jury's note that "you have received all the law and evidence in this case" was not error where charge was not erroneous).
The reporter's record does not reveal any discussion by the court or the parties about a response to this note. In the clerk's record, however, the note is followed by another jury note, with the question "Was an attempt to pay the money back ever made?" The two notes are followed by a written ruling by the trial court, directed to the members of the jury, that they "have received all of the law and evidence, please continue deliberating." After the jury returned, the trial court thanked jurors for reaching a verdict without further instruction from the court.
Viewing the evidence in the light most favorable to appellant, we conclude that the trial court did not err by refusing appellant's requested instruction. See Maciel, 631 S.W.3d at 722. We further conclude that even if the trial court's refusal was erroneous, it did not cause "some actual, rather than merely theoretical," harm to appellant. See Reeves, 420 S.W.3d at 816. Accordingly, we overrule appellant's second issue.
3. Judgment
In her third issue, appellant requests that the judgment should be reformed to reflect correctly the attorneys who represented the parties at trial. The State agrees.
This Court has the power to correct and reform the trial court's judgment to make the record speak the truth when it has the necessary information to do so. TEX. R. APP. P. 43.2(B); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd). The judgment incorrectly reflects that counsel for the State was Austin Ortiz, and counsel for appellant was Ebony Turner. We reform the judgment to reflect that Steve Fawcett, State Bar of Texas No. 24089740, was counsel for the State and Temani Adams, State Bar of Texas No. 24094778, was counsel for appellant at trial.
Conclusion
We resolve appellant's first two issues against her. We sustain her third issue and modify the judgment accordingly. As modified, the trial court's judgment is affirmed.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
to reflect that Steve Fawcett, State Bar of Texas No. 24089740, was counsel for the State, and that Temani Adams, State Bar of Texas No. 24094778, was counsel for the defendant at trial.
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 6th day of October, 2023.