Opinion
No. 13-00-519-CR.
Opinion Delivered and Filed May 1, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
Appeal from the 93rd District Court of Hidalgo County, Texas.
Before Chief Justice VALDEZ and Justices YAÑEZ and RODRIGUEZ.
OPINION
Appellant, Jesus Perez, appeals his jury convictions for theft by a public servant and money laundering. See TEX. PENAL. CODE ANN. §§ 31.03(a), (b)(1) 34.02(a)(1) (Vernon 2003). The jury assessed punishment in the theft case at two years' imprisonment and in the money laundering case at five years' confinement, both terms to be suspended with community supervision for five years and a $10,000.00 fine. By five issues, appellant contends: (1) the evidence is legally and factually insufficient to support his convictions; (2) his due process rights were violated; (3) the trial court abused its discretion by ordering restitution when there was no victim; (4) the judgment violates the double jeopardy clause of the United States Constitution; and (5) his trial counsel provided ineffective assistance. We affirm.
I. Background
From 1981 through 1999, appellant was employed by the La Joya Police Department (LJPD). In 1985, he was appointed chief of police. As police chief, appellant worked with the reserve officers' account (reserve account) using the funds to equip, uniform, and train the police department's reserve officers. In 1988, appellant became the sole signatory on the reserve account, and began managing it. In 1997 and 1998, a number of cash deposits were made into the reserve account. These monies form the basis of the criminal charges filed against appellant.II. Sufficiency of the Evidence
By his third issue, appellant contends the evidence is legally and factually insufficient to convict him of either theft by a public servant or money laundering. Appellant contends the evidence is insufficient to establish: (1) unlawful appropriation of the money; (2) intent to deprive the claimants of the money; and (3) ownership of the money.A. Standard of Review
When we review a legal sufficiency of the evidence point of error, we view all the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Rosillo v. State, 953 S.W.2d 808, 811 (Tex.App.-Corpus Christi 1997, pet. ref'd). We measure the legal sufficiency of the evidence by the elements of the offense as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). Such a charge would accurately set out the law, would be authorized by the indictment, and would not unnecessarily increase the State's burden of proof. Id. Under the factual sufficiency standard of review, we ask "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). We will reverse the fact finder's determination only if "a manifest injustice has occurred." Id. at 12. In conducting this analysis, we may disagree with the jury's determination, even if probative evidence supports the verdict, but we must avoid substituting our judgment for that of the fact finder. Id. The jury, as the trier of fact, may use common sense and apply common knowledge, observation, and experience gained in ordinary affairs when giving effect to the inferences that may be reasonably drawn from the evidence. Booker v. State, 929 S.W.2d 57, 60 (Tex.App.-Beaumont 1996, pet. ref'd). As fact finder, the jury is the exclusive judge of the credibility of witnesses and the weight to be afforded their testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). The jury is free to accept one version of the facts, reject another, or reject all or any of a witness's testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App. 1981); Sills v. State, 846 S.W.2d 392, 394 (Tex.App.-Houston [14th Dist.] 1992, pet. ref'd). Simply because the defendant presents a different version of the facts does not render the State's evidence insufficient. Anderson v. State, 701 S.W.2d 868, 872 (Tex.Crim.App. 1985); Sills, 846 S.W.2d at 394.B. Theft by a Public Servant
Appellant was indicted for theft of money in the aggregate amount of "$20,000.00 and more, but less than $100,000.00," without the effective consent of Guadalupe Gomez, Rolando Gallegos, Joel Lozano, Jose Alberto Mendoza, and Jesus Flores, with the intent to deprive them of their property. The parties agreed to provide alternate instructions to the jury for thefts of lesser amounts, including $1,500.00 or more but less than $20,000.00, and $500.00 or more but less than $1,500.00. The jury found appellant guilty of the offense of theft of property by a public servant of the value of $1,500.00 or more but less than $20,000.00. A person commits the offense of theft if he unlawfully appropriates property with intent to deprive the owner of the property. TEX. PENAL. CODE ANN. § 31.03(a) (Vernon 2003). To "appropriate" means to acquire or otherwise exercise control over property other than real property. Id. § 31.01(4)(B). Appropriation of property is unlawful if it is without the owner's effective consent. Id. § 31.03(b)(1). Consent is not effective if induced by deception or coercion. Id. § 31.01(3)(A). "Deception" means "creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true." Id. § 31.01(1)(A). "Deprive" means "to withhold property from the owner permanently or for so extended a period of time that a major portion of the value of enjoyment of the property is lost to the owner," or "to dispose of property in a manner that makes recovery of the property by the owner unlikely." Id. § 31.01(2)(A) (C). Both lack of consent and intent to deprive may be shown by circumstantial evidence. See Griffin v. State, 614 S.W.2d 155, 159 (Tex.Crim.App. 1981) (holding intent to deprive may be determined from acts and words of accused); Williams v. State, 591 S.W.2d 873, 875 (Tex.Crim.App. 1979) (holding lack of consent may be proved by circumstantial evidence). Furthermore, thefts may be aggregated when the amounts were obtained pursuant to one scheme or continuing course of conduct, and the conduct can be considered as one offense. TEX. PENAL. CODE ANN. § 31.09 (Vernon 2003).1. Guadalupe Gomez
Guadalupe Gomez testified she located her vehicle at the La Joya Police Station when she went to the station to report it stolen. While at the station, Gomez learned her granddaughters, who had been occupants in the car, had been arrested for evading arrest. Officer Jose Luis Del Angel, an investigator with the LJPD, testified cash in the amount of $2,900.00, all hundreds, had been found in Gomez's vehicle. Gomez explained the money was from the sale of furniture at her Houston store, and was being used to purchase the vehicle. Del Angel testified he could have seized the money or forfeited it based on the alert of a drug dog. The money could have been drug proceeds. Del Angel informed appellant that money had been found in Gomez's car. Appellant knew that the dog had alerted and that the money might be dirty. Del Angel heard appellant talk with Gomez about the money. Appellant explained to Gomez that a drug dog had alerted to the money and that she could donate the money to the reserve fund in order to avoid legal problems and costs in attempting to get the money back through a civil forfeiture proceeding. Gomez left the police station undecided as to whether she would donate the money. She called later that day saying she would donate the money and sign an affidavit. Del Angel testified he prepared Gomez's affidavit which included blanks that were filled in with her identifying information and the following paragraph, "I, Guadalupe Lopez Gomez wish to donate $2900.00 dollars to [the] La Joya Police Department reserve fund for ceaseless police training. I make this donation with the understanding that the $2900.00 dollars will be used strictly for police use only." Gomez testified that the following day she went back to the police station and was asked to sign a document donating money to police officers in La Joya. Gomez testified she was nervous and did not want to donate the money. She did not live in La Joya and did not know anyone in the police department. Nonetheless, Gomez donated the money because she was told it was the best thing to do, and she thought that if she did not donate the money, she would have to go to court and would probably not get the money back anyway. If she had known then what she knew at the time of trial, Gomez would have claimed the money. She would have fought for it. Appellant testified he met Gomez the day she reported the vehicle stolen. Appellant said $30.00 was found in a purse during the initial search of the car. However, a large amount of money was discovered on one of the females when she was booked. Gomez told him the girl had gotten the money out of her purse. Appellant said that because drugs were suspected, a K-9 unit had been brought in. The dog alerted to the vehicle, indicating there may have been drugs in the vehicle. He spoke with Gomez and told her the dog had alerted. He also told her Del Angel was in charge of the case and that it was appellant's understanding that they would possibly charge the females and the driver with some sort of crime. Appellant was aware Gomez's money was eventually donated to the reserve fund.2. Rolando Gallegos
Rolando Gallegos testified the police stopped the vehicle in which he was riding, and found cocaine when they searched the car. He was taken into custody and booked. When Gallegos's property was inventoried, the police found $1,355.00 cash. Gallegos told them the money was from the sale of a truck. After he was placed in a cell, Gallegos was questioned on two occasions about cocaine, and on a third occasion about the money. The officers suggested that an offer might be made to him-a chance to get out if he donated the money to the police. Gallegos testified he did not want to donate the money. He did not live in La Joya. He was feeling sick and wanted to get out of jail and go home. Appellant talked with Gallegos about the drugs and the money. Appellant told him to sign the affidavit saying he would donate the money to be used for police purposes. Appellant told Gallegos that if he donated the money, he could get out, so he signed over the money. It was like having to pay a fine to get out. Gallegos said there were no threats. Gallegos was told, however, that if he did not sign the paper, he would be transferred to the county jail. At the time of his arrest, Gallegos was on probation for possession of over 100 pounds of marihuana. His probation was never revoked. Arturo Tijerina, who assisted with Gallegos's arrest, testified Gallegos did not know to whom the money belonged, therefore, it was donated to the LJPD reserve fund. When Tijerina charged Gallegos with possession of a controlled substance, Gallegos had approximately $1,300.00 on him. The money was not, however, reflected on the property report. As did Tijerina, appellant testified that Gallegos was not claiming the money. Appellant also testified that he and Gallegos met briefly, after appellant was told the affidavit had been drawn up and Gallegos was going to sign it. Appellant stated he did not speak with Gallegos regarding the donation. Israel Pacheco, a sergeant with the Texas Rangers, testified he had reviewed Gallegos's police file. On the arrest report, a line was drawn through the type of offense with the initials "JP" above it. Sgt. Pacheco noticed the original amount of money found in Gallegos' property had been scratched off, and a different number written in its place.3. Joel Lozano
Joel Lozano testified the LJPD seized his vehicle when a gun and an ounce of cocaine were found in it. Lozano explained to appellant that he had sold that vehicle to another, but the new owner no longer wanted it. Appellant told Lozano he could take the vehicle if he paid $330.00. Appellant told him to ask for Del Angel when he took the money to the station. Lozano did not intend to make a money donation to the LJPD reserve police fund; he was just paying a fine for the truck. Appellant testified Lozano's storage fees were paid and received on behalf of the City of La Joya (the City) through the police department, and that the money was deposited into the reserve officer's account. Appellant claimed the decision to put the funds in the reserve account was based on information provided by Del Angel who told him the department, not the City, could charge storage fees. Appellant put the money into the reserve fund so it would not go into the forfeiture fund which was only for money seized in connection with drugs. Del Angel testified appellant called him and told him Lozano was going to donate money for the return of his vehicle. Del Angel gave Lozano's money to appellant. No affidavit was taken. Later appellant was upset when he learned a city receipt had been given to Lozano, and that the City had reported a $300.00 shortage because the money had been deposited into the reserve fund, not the city fund.4. Jose Alberto Mendoza
Del Angel testified that when he arrested Jose Mendoza for a traffic violation, he noticed a very, very strong odor from the car. Mendoza told Del Angel he and his friend had smoked a marihuana joint. Del Angel noticed Mendoza had money in his pocket. The bills were all hundreds and were wrapped in a wad with a rubber band around them. This was an indication that the money was probably drug money. Mendoza told Del Angel he had won the money on a "tanda" (raffle). Mendoza was charged with possession of marihuana and public intoxication. Appellant talked with Del Angel, Mendoza, and Guadalupe Elizondo, Mendoza's employer. Del Angel testified appellant wrote a portion of the affidavit that stated Mendoza would donate the money. Del Angel typed it into the body of the affidavit. Appellant wanted Del Angel to drop both charges, but Del Angel said he would only drop the possession charge. Mendoza was charged with public intoxication. Later, Del Angel suggested the matter be handled as a seizure, but appellant said no, that it was a donation. Appellant had a receipt showing he had already deposited the money into the reserve account. Mendoza testified he had approximately $5,000.00 in hundreds, twenties, tens, and fives, money that he had won from friends. Mendoza thought he was under arrest when he was taken to the police station where the police found the money. Because appellant was a customer at the restaurant where Mendoza worked, Mendoza asked for him. Mendoza called his employer, Guadalupe Elizondo. When Mendoza met with appellant, Del Angel, and Elizondo, appellant told him that if he donated the money there would not be an investigation, but that if he did not donate the money, they would investigate and it would get worse for him. Del Angel told Mendoza the money they found was drug money. Mendoza had a proceeding for possession of cocaine pending, and was told they were going to send him "up to the county [jail]." Mendoza gave the money to the police. He was nervous; he had the drug case pending; and he had been caught with $5,000.00. Mendoza just wanted to get out, and was led to believe he would get out if he donated the money. Mendoza testified he did not want to donate the $5,000.00. Appellant testified he met with Del Angel, Mendoza and Elizondo. When Mendoza asked what would happen if he did not donate the money, appellant testified that he told him they would seize it and send it over to the Drug Enforcement Agency (DEA) and that a forfeiture case would be filed to take the money from him. After the explanation was given, Mendoza nodded in agreement and appellant went back into his office. That is the last appellant knew of the case. He testified that he did not prepare the affidavit, and it was not signed in his presence. Appellant said he took the money as a donation.5. Jesus Flores
When the vehicle in which Jesus Flores was riding had a flat tire, the police stopped to help. Noticing a beer can, the officers received permission to check the vehicle. Another person in the vehicle was arrested for public intoxication. Flores testified that he was also taken to the station and booked. He was nervous because he was traveling away from home, in violation of his probation. Money in the amount of approximately $500.00 was taken from his pocket when he was booked. Flores signed an affidavit stating he wanted to put the money towards police training. Forty-five minutes later, he was released. Flores testified he was scared. He knew he was in trouble and was afraid that if he did not cooperate with the police department he would be charged with possession and would face a probation violation. Signing the affidavit was his way out without being charged. Sgt. Pacheco testified that Flores's file contained an unsigned but notarized affidavit. It set out that Flores would donate $506.63 to the LJPD to be used strictly for police training.6. Other Relevant Testimony
Appellant testified he asked Del Angel why the donations were being made, and Del Angel told him that he had explained the forfeiture process to the individuals. In lieu of a forfeiture proceeding which would cost them money, the individuals decided to donate money to the police department. Appellant testified it was up to the seizing officer to determine whether they were going to file for forfeiture or not; it was not up to appellant. Sgt. Pacheco testified appellant admitted people were donating money under his watch, at his direction. Appellant took full responsibility for whatever his police officers were doing. He was aware these monies were being deposited in the reserve fund, and that he was the only one with access to the account. Appellant further admitted monies were coming from police officers to him and he was depositing the money. Appellant told Sgt. Pacheco he knew the proper procedures for seizing and forfeiting money, but saw this as an easy way to get money in order to buy equipment for his men. Appellant also told him he would always withdraw cash from the fund to avoid check writing charges. Sgt. Pacheco found this unusual because anytime you are dealing in cash you are setting yourself up for a fall. According to Sgt. Pacheco, there were no matching receipts for over $10,000.00 withdrawn from the account. There were also missing criminal case police reports and folders, some of which had items in them related to the donations. Kathryn Crews, a financial analyst with the Federal Bureau of Investigation (FBI), testified she reviewed documentation provided to her, and found approximately $3,500.00 for which there were no receipts. This represented a six-month period of time from January to June 30, 1998.7. Sufficiency of the Evidence on Theft Conviction
Viewing this evidence in the light most favorable to the prosecution, a rational trier of fact could have reasonably inferred, beyond reasonable doubt, that appellant appropriated the money from each owner without effective consent and with the intent to deprive the owner of his or her money. See Jackson, 443 U.S. at 318-19; Rosillo, 953 S.W.2d at 811; see also TEX. PENAL. CODE ANN. §§ 31.01, 31.03 (Vernon 2003). Further, after a neutral review of all the evidence, the proof of guilt is not so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is not greatly outweighed by contrary proof. See Johnson, 23 S.W.3d at 11. Thus, the finding is not manifestly unjust or clearly wrong when tested against the entire record. Id. Accordingly, the evidence is neither legally nor factually insufficient to support the verdict. Because we have concluded the evidence is sufficient to support the jury's finding of theft by a public servant of the value of $1,500.00 or more but less than $20,000.00, without the effective consent of Gomez, Gallegos, Lozano, Mendoza, and Flores, and because appellant did not object to the submission of the alternative manner and means of the commission of this offense, we need not address his sufficiency challenge to the alleged unlawful appropriation of money from Oscar Cuellar, in his capacity as city manager of the City. See Lawton v. State, 913 S.W.2d 542, 551 (Tex.Crim.App. 1995) (State allowed to plead alternative theories of manner and means in conjunctive and proof under one theory will suffice for conviction); Scott v. State, 732 S.W.2d 354, 360 (Tex.Crim. App. 1987) (where indictment alleged alternative theories, manner and means unknown and a named manner and means, proof of either means was sufficient).C. Money Laundering
Appellant was also indicted for money laundering when he,did then and there knowingly acquire, receive, and possess the proceeds of criminal activity, to-wit: money in the value of $3,000 or more but less than $20,000 to-wit: by telling a prisoner who had been arrested by the La Joya Police Department that he would be taken to the Hidalgo County Jail and that federal law enforcement would investigate him if he did not give the said proceeds to the La Joya Police Department.The jury found appellant guilty of the offense of money laundering as charged in the indictment. A person commits the offense of money laundering when he knowingly obtains or maintains an interest in, receives, conceals, possesses, transfers, or transports the proceeds of criminal activity. TEX. PENAL. CODE ANN. § 34.02(a)(1) (Vernon 2003). Section 34.02(a) requires the defendant knowingly do something involving the proceeds of criminal activity. Id.
A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.Id. § 6.03(b). "Criminal activity" is any felony offense. Id. § 34.01(1)(A). "'Proceeds' means funds acquired or derived directly or indirectly from, produced through, or realized through an act." Id. § 34.01(3). Appellant contends the State failed to present evidence of "possession by [appellant] knowing that [the] monies were 'proceeds' of a 'criminal activity.'" He asserts his money laundering conviction must be reversed because the evidence is legally and factually insufficient to establish: (1) he knew that Mendoza's money was the proceeds of criminal activity, which he contends could be the only basis of the money laundering offense; and (2) he told Mendoza he would be taken to jail if he did not give the money to the police department, which appellant contends is the alleged manner and means of committing the offense. We construe appellant's argument to be that the evidence did not prove that appellant knowingly acquired, received, or possessed proceeds of criminal activity from Mendoza. See id. § 34.02(a)(1). We have carefully reviewed the record evidence set out above regarding Mendoza's alleged donation. Taken in the light most favorable to the prosecution, we conclude a rational trier of fact could have reasonably inferred, beyond reasonable doubt, that appellant committed the money laundering offense. See Jackson, 443 U.S. at 318-19; Rosillo, 953 S.W.2d at 811; see also TEX. PENAL. CODE ANN. § 34.02(a)(1) (Vernon 2003). Further, after a neutral review of all the evidence, the proof of guilt is not so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is not greatly outweighed by contrary proof. See Johnson, 23 S.W.3d at 11. Because Del Angel, Mendoza, and appellant told different stories, it was within the province of the jury to judge the credibility of the witnesses and determine the weight to be given their testimony. See Penagraph, 623 S.W.2d at 343 (jury free to accept one version of facts, reject another, or reject all or any of witness's testimony); Sills, 846 S.W.2d at 394 (same). Thus, the finding is not manifestly unjust or clearly wrong when tested against the entire record. Id. Accordingly, the evidence is neither legally nor factually insufficient to support the verdict on the money laundering charge. We overrule appellant's third issue.
III. Due Process
By his first issue, appellant contends his due process rights were violated by his convictions and incarceration for charged conduct that Texas's criminal statutes, as properly interpreted, do not prohibit. Appellant's entire argument is that:a careful record review shows the evidence undisputedly established a defense under Tex. Pen. Code § 34.02(c) to count two's money laundering charge: namely, peace officers [appellant] (and Del Angel) "acted with intent to facilitate the lawful seizure, . . ., disposition of funds or other legitimate law enforcement purpose pursuant to the law of this state or the United States." Texas law permits anyone to give money to another. If one donates less than $10,000 to another no tax is assessed under the U.S. Internal Revenue Code. Due process is violated by [appellant's] conviction for conduct that Texas' criminal statutes do not prohibit. Fiore v. White, 121 S.Ct. 712, 714 (2001).Appellant urges that the evidence establishes a statutory defense. Appellant does not develop his argument further. He does not provide specific citations to relevant portions of the record and to authority that support his contention. See TEX. R. APP. P. 38.1(h) (brief must contain clear and concise arguments for contentions made, with appropriate citations to authorities and to record). Neither does he offer a clear and concise argument for the contentions he makes. See id. In accordance with rule 38.1(h) of the Texas Rules of Appellate Procedure, we will only consider contentions that are supported by clear and concise arguments with appropriate citations to authorities and to the record. See id. We will not make appellant's arguments for him and, thus, we hold this issue to be inadequately briefed. See Tong v. State, 25 S.W.3d 707, 710 (Tex.Crim.App. 2000); Wyatt v. State, 23 S.W.3d 18, 23 n. 5 (Tex.Crim.App. 2000). Moreover, appellant's reliance on Fiore v. White is misplaced. Fiore was convicted under a Pennsylvania statute that prohibits "operating a hazardous waste" facility without a "permit." Fiore v. White, 531 U.S. 225, 226 (2001). Fiore did not involve an element of a statutory defense to an offense, which is the argument in this case. It addressed the possession of a permit, one of the basic elements of the offense of unlawfully operating a hazardous waste facility without a permit. See id. at 227-29. The Fiore Court reiterated that the due process clause of the Fourteenth Amendment forbids a state from convicting a person of a crime without proving the elements of that crime beyond a reasonable doubt. See id. at 228-29 (citing Jackson, 443 U.S. at 316). We have already determined that the facts of this case supported a finding of all elements of money laundering. Appellant's acts were prohibited. Having proved the elements of money laundering, the due process clause, as argued by appellant, was not implicated. See id. Furthermore, while it is a defense to prosecution for money laundering "that the person acted with intent to facilitate the lawful seizure, forfeiture, disposition of funds or other legitimate law enforcement purpose pursuant to the law of this state or the United States," TEX. PENAL. CODE ANN. § 34.02(c) (Vernon 2003), appellant had an opportunity to present his defense to the jury requiring the State to disprove the defense beyond a reasonable doubt, see Wilson, 777 S.W.2d at 825, but chose not to do so. During the jury charge conference the trial court inquired as to whether or not the defendant would be requesting a defense charge. The State explained that a defense to the money laundering offense had been included, but at the request of the defendant, had been removed from the charge. Defense counsel indicated to the court that he had reviewed the charge, had spoken with the State's attorney, and had no objections to the charge. Appellant's position throughout the trial had been that the monies were from donations, not from criminal activities or proceeds of criminal activities; therefore, the defense did not apply. Appellant's first issue is overruled.