Summary
noting that a trial court has the discretion to grant or deny a continuance
Summary of this case from Walker v. WalkerOpinion
NO. 02-14-00060-CR
04-21-2016
EDDIE LACY STIVERS III APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
TRIAL COURT NO. CR12356 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
In three points, Appellant Eddie Lacy Stivers III argues that (1) the trial court erred by denying his motion for continuance; (2) the trial court erred by denying his motions for mistrial after the State's witnesses violated his motion in limine; and (3) the evidence is insufficient to show he had the requisite culpable mental state to commit the one count of theft and the two counts of fraud in the sale of securities. We affirm.
Summary of Evidence and Verdicts
Appellant received $519,375.51 from investors and lenders over a period of about five-and-a-half years. The investors thought they were investing in health insurance companies that Appellant was trying to launch. Appellant told investors that they could expect a tenfold return on their investment in five years or, in a worst-case scenario, he would return their investment in full with 10% or, in some instances, 12% interest. As for the lenders, they were generally under the impression that they were providing Appellant a short-term bridge loan until other funds—currently unavailable for one reason or another—became available, and once they became available, those funds would be used to repay the loan.
Neither the investors nor the lenders contemplated Appellant's using the money for his personal expenses. The evidence showed, however, that Appellant spent over $400,000 of the money he received from investors and lenders on his personal expenses. Because most of the complainants went to the same church as Appellant and knew Appellant through his involvement in the church, the State referred to Appellant's conduct as an affinity fraud.
A jury convicted Appellant of (1) aggregated theft of property of $200,000 or more, (2) fraud in the sale of securities of more than $100,000, and (3) fraud in the sale of securities of more than $10,000 but less than $100,000. For each of the first two offenses, the jury assessed his punishment at eighty-five years' confinement, and for the third offense, the jury assessed his punishment at twenty years' confinement. See Tex. Penal Code Ann. § 31.03(e)(7) (West. Supp. 2015); Tex. Rev. Civ. Stat. Ann. art. 581-29(C)(4)(b)-(c) (West Supp. 2015). The trial court sentenced Appellant in accordance with the jury's verdicts and ordered the sentences to run concurrently.
Evidence
Forensic Analysis of Appellant's Bank Records
Letha Sparks, a forensic analyst called by the State, reviewed Appellant's bank records from June 2005 through February 2011, which included the investor funds listed in the indictments. The last date for a financial contribution listed in the indictment was February 11, 2011, so Sparks reviewed the bank record through the end of the month of February 2011 for the purposes of her analysis.
State's Exhibit 43 showed that during that time period, Appellant had an aggregate income credit of $590,290.07, of which all but $70,914.56 came from investors. During the relevant time period—a span of about five-and-a-half years—Appellant effectively received $519,375.51 from investors and $70,914.56 from all other sources. Appellant's insurance commissions for the entire period accounted for only $11,280.32 of the $70,914.56 that Appellant obtained from sources other than investors. During that same period, Appellant had approximately $486,074.03 in personal expenses. Consequently, for the relevant period, Appellant's personal expenses ($486,074.03) were approximately seven times his non-investment income ($70,914.56). Sparks acknowledged that an exact accounting was not possible because some of the personal expenses might have been related to business. Because Appellant had no receipts, she treated those expenses she could not specifically link to business purposes as personal.
By February 28, 2011, Appellant's bank accounts collectively had a negative balance of $17.39.
How Appellant Obtained the Investment Funds
From June 2005 through February 2011, Appellant solicited individuals to invest in the start-up of his health insurance companies, the Patriot Insurance Company and the Patriot Holding Company (collectively, the Patriot Insurance Company). These investments form the basis of counts one (theft in the aggregate amount of $200,000 or more) and two (securities fraud in excess of $100,000). Nineteen witnesses testified regarding their investments in Appellant's health insurance companies.
Regarding the Patriot Insurance Company, the complainants generally understood Appellant to be one of the most successful health insurance salesmen in Texas and, in some instances, the United States. One witness testified that Appellant told him that he was "rated as anywhere between [the] number one and number five rated insurance seller in the State of Texas." Another testified that Appellant said he was "one of the top insurance sales agents in the State of Texas." Yet another testified that Appellant told him that "he was a twenty million dollar company and had been in the top five in the nation for several years." Paperwork that Appellant had given one witness proclaimed that Appellant had "been recognized for more than one million annual sales individually and 22 million as an agency, ranking him number one in the State of Texas and between three and eight in the nation." Another said that Appellant "indicated he was the second largest health insurance guy in the State, and this was the foundation for this company, was his clientele."
The only evidence arguably supporting these assertions came from an insurance agent who worked with Appellant in 1998 and for an unspecified time thereafter; he asserted that Appellant was their company's top salesman for many years. It was not clear whether this witness thought that because Appellant told him that or because their employer told him that. During the five-and-a-half year period relevant to these charges, Appellant's insurance commissions for the entire period amounted to only $11,280.32, or roughly $2,051 per year. There was no evidence regarding what a top health insurance salesman in Texas made per year, but common sense suggests it was considerably more than $2,051 per year. Appellant told one investor that he had more than twenty agents working for him, but when she visited his office in Fort Worth, she saw only two desks with virtually nothing on them. When she questioned Appellant about this incongruity, he explained to her that only two of his agents worked out of the office and that all the others worked out of their homes. Another complainant said Appellant represented that he had employees in Texas, Arizona, and Colorado. There was no evidence that Appellant ever had any employees on a payroll.
Appellant identified as members of the Patriot Insurance Company advisory board (1) D.H., who was touted for his work on The Promise, "an epic musical drama on the life of Christ" that had been produced in the Texas Amphitheatre in Glen Rose for over a decade; (2) D.S., who was described as "enthusiastically involved in his community and as a Sunday School Teacher, Lay Leader, Discipleship Leader and in church activities for over twenty years"; and (3) B.B., who was noted as a co-founder of Cornerstone Christian Academy in Granbury. Appellant also had provided prospective investors with a list of existing investors, and D.H., D.S., and B.B. were among those listed.
Appellant described his companies as "God focused" and described the Patriot Insurance Company in its "Values Statement" as a company that "put God first, family second, work third, and ourselves last in our lives." Appellant was described as active at his church and in charge of the church ushers "for quite some time." Appellant's association with the church provided him credibility and a means of introduction to prospective investors. Many of the complainants were church members.
Twenty-one investors testified that their understanding was that Appellant was to use the money for business, not personal, purposes. When asked by an investigator, Appellant denied ever using the money for personal expenses. By reviewing the bank statements, however, Sparks showed that Appellant used most of the money on personal expenses such as utilities, auto expenses, restaurants, clothing, personal loans, home decor, and rent. Several complainants said they would not have invested with Appellant if they had known he was going to use their money for his personal expenses.
How Appellant Obtained the Loans
During this same period, Appellant also executed promissory notes in connection with Patriot Insurance Company or a third company, Insurance Choice One, LLC. Promissory notes are securities under the Texas Securities Act. Tex. Rev. Civ. Stat. Ann. art. 581-4(A) (West 2010). These promissory notes form the basis of count three (securities fraud of $10,000 or more but less than $100,000). Three witnesses testified regarding the promissory notes.
One of the complainants was a businessman whose office was next door to Appellant's. Appellant approached him about an "advanced commission opportunity" in Insurance Choice One, LLC. Appellant explained that he would use the complainant's money to pay his sales group their commissions in advance and, when the actual sales commissions came in, he would repay the complainant. Appellant was supposed to repay the complainant $5,000 in two months and the remaining $5,000 in four months while paying the complainant 1.5% interest per month (18% interest annually). When Appellant failed to pay and the complainant confronted him, Appellant assured him that a large amount of money—$178,000—was coming in and that when it did, Appellant would make the payment. When asked how much Appellant had repaid him, the complainant responded, "Not a dime." When asked if he made the loan so that Appellant could use his money for personal expenses, this complainant answered, "Absolutely not."
Another of the complainants was a real estate agent whom Appellant contacted regarding listings for properties valued at $400,000 or more for building a million-dollar home. She assumed Appellant could afford to buy the properties. While discussing real estate, she discovered that she and Appellant went to the same church and that Appellant was very involved in the church; specifically, Appellant told her that he was the head usher, that he had taught Bible classes, and that he had started an EMT-type service for the church. Appellant also mentioned that other members of their church, including the pastor, had invested in his company. Appellant explained to her that he had all the money he needed to complete the investment; however, about $50,000 was tied up in other investments and could not be liquidated without incurring tax penalties. She did not sell Appellant any property, but she agreed to "invest" $20,000 in Appellant's business. What she signed, however, was a promissory note in which Appellant agreed to repay her $30,000 in 120 days. In the paperwork Appellant gave her regarding Insurance Choice One, LLC, Appellant boasted he was ranked number one in Texas and between number three and eight in the nation in health insurance sales. Appellant asserted he had been recognized for more than $1 million in annual sales individually and for $22 million as an agency. The only evidence of Appellant's insurance sales prowess during the trial on guilt/innocence was the $11,280.32 he earned during the five-and-a-half-year period in question. There was no evidence Appellant's representations were true based upon an earlier time period. Appellant repaid her nothing. She testified that she would not have made the loan if she had known Appellant was going to use the money for personal expenses.
Appellant rented the home he lived in.
The third complainant agreed to "invest" $10,000 into Appellant's company, but Appellant agreed to return all of this complainant's principal within four to six months (depending on the company's cash flow) in exchange for 1% of Appellant's company. This complainant also executed a typical Patriot Insurance Company "seed money" contract for $10,000. Consequently, it is not clear whether this was an investment, a loan, or some combination of the two. This complainant received $2,000 of his $10,000 back. He testified that he would not have made the investment if he had known Appellant was going to use his money for personal expenses.
Sufficiency of the Evidence
In Appellant's third point, Appellant maintains the evidence was insufficient to establish that he had the requisite criminal mens rea for the offenses of securities fraud and theft. He emphasizes that the contractual agreement between each investor and Appellant contained a rescission exit strategy plan. Appellant contends that the trial court erred by not granting his motion for a directed verdict at the conclusion of the State's case-in-chief.
The investors in Appellant's business proposals testified that Appellant had persuaded them of a potentially huge investment return (generally tenfold) over about a five-year period with the option of an exit strategy plan that would result, in a worst-case scenario, in the return of their investment plus either 10% or 12% interest, depending on the witness, in the event the new business failed to "fund." Some investors were told that their investment would be used as "seed money," while others understood that their investment would be in an escrow account needed to fund and establish the business and ultimately to entice bigger investors. The company never formed, and Appellant never issued any stock. Consequently, the focus was on the promised exit strategy plan.
Appellant told some complainants that he had investors who were willing to fund the company entirely, but he turned those investors down because he did not want to give up part of the management. Appellant made other representations that either the funding was in place or was nearly in place. Appellant had two meetings in 2009 with various complainants that served only to further alarm them. One investor lamented that Appellant asserted that he could not look at the company's financial records because he was not a shareholder; however, the reason he was not a shareholder was because Appellant had never fully funded the company and issued the promised stock.
Appellant maintains that not one witness called by the State or by the defense established that Appellant had any intent to defraud an investor at the time of their investment. Appellant stresses that many investors testified that they knew of the exit-strategy plan that allowed them to request their investment back but that also allowed Appellant time—usually three years—in which to refund the money; other investors acknowledged the clause after being shown the paperwork. Appellant asserts that all of those who elected to file a rescission order, with the one exception of an investor who filed after the indictment, received their money back within the three-year contractual time limit. Appellant contends the State's witnesses admitted that under their contracts, Appellant had three years from the time they demanded their money back to repay it and that the time period had not yet lapsed at the time of his indictment on December 5, 2012. Appellant concludes that there was no evidence during the State's case-in-chief that he had a criminal intent at the time the various complainants agreed to invest in the Patriot Insurance Company or agreed to promissory notes in connection with Insurance Choice One, LLC.
From June 2005 until February 2011, Appellant returned $9,700 to investors. It is not clear how many investors that encompassed. Appellant's record references in his brief in support of his position direct us to seven investors. Five of the six persons who signed the rescission request received most if not all of their principal back. The sixth person had not been paid back but was still within the three-year payback period at the time of trial. A seventh investor received his money back without signing a rescission request. The amounts varied from $1,000 to, in one instance, as much as $12,500.
A challenge to the denial of a motion for instructed verdict is actually a challenge to the sufficiency of the evidence. Canales v. State, 98 S.W.3d 690, 693 (Tex. Crim. App.), cert. denied, 540 U.S. 1051 (2003). In our due-process review of the sufficiency of the evidence to support a conviction, we view all of 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, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.
In the theft count, the State alleged:
[S]aid appropriations were without the effective consent of said owners in that consent was induced by deception, to wit: said defendant created and confirmed by words and conduct false impressions of fact that were likely to affect the judgment of said owners in the transactions and that the defendant did not believe to be true; and said defendant failed to correct false impressions of fact that were likely to affect the judgment of said owners in the transactions, that said defendant previously created and confirmed by words and conduct, and that said defendant did not at the time believe to be true; and said [d]efendant promised performance that was likely to affect the judgment of said owners in the transactions that the [d]efendant did not intend to perform and knew would not be performed;
[a]nd said defendant acted with the intent to deprive said owners of said property by withholding said property permanently and for so extended a period of time that a major portion of the value and enjoyment of said property was lost to said owners, and by disposing of said property in a manner that made recovery of said property by said owners unlikely; and all of said amounts were obtained, as alleged, as part of one scheme and continuing course of conduct, and the aggregate value of property so appropriated was $200,000.00 or more . . . .
Regarding the other two counts, the manner and means of the commission of securities fraud in connection with the sale of securities included "intentionally failing to disclose that funds contributed by investors in the purchase of financial agreements for the purchase and issuance of stock in Patriot Holding Company and Patriot Insurance Company were used to pay the personal expenses of the defendant and his wife, said information being material fact[.]" The charge of the court included a definition of materiality for securities fraud charges as follows:
A fact is "material" if there is a substantial likelihood that it would have assumed actual significance in the deliberations of a reasonable investor, in that it would have been viewed by the reasonable investor as significantly altering the total mix of available information used in deciding whether to invest.
When an investigator asked Appellant whether any of the investment funds were used for his personal expenses, Appellant responded, "Nope, never did." According to Appellant, he "didn't go down that road" and did not raise the money for "personal stuff." This was consistent with the complainants' understanding; they said that the money was to be used for business purposes, not for personal purposes. Many complainants said they would not have invested with Appellant if they had known he was going to use their money for his personal expenses.
However, Sparks's forensic analysis of Appellant's bank records from June 2005 through February 2011, which included the investor funds listed in the indictments, showed a radically different picture. State's Exhibit 43 showed that during that time period, Appellant had an aggregate income credit of $590,290.07, which came from the following sources:
$519,375.51 | Investor Deposits |
$ 50,504.10 | Non-Investor Deposits |
$ 20,410.46 | Cash Deposits |
|---|---|
$590,290.07 | Total Sources of Funds |
$486,074.03 | Funds Used for Appellant's Personal Expenses |
$ 70,747.83 | Funds Used for Business-Related Expenses |
$ 33,485.60 | Unidentified Payees |
|---|---|
$590,307.46 | Total Uses of Funds |
To the extent Appellant honored some rescission exit strategy plans, Sparks's analysis shows Appellant was never in a position to honor all of them, making the rescission exit strategies illusory enticements. Apparently only one investor thought to ask Appellant how he was going to manage to return his investment, and Appellant responded that he would do so through the cash flow generated by his insurance premiums. That investor said that Appellant boasted he was the second largest health insurance salesman in the state. Sparks's report for the relevant five-and-a-half-year period, however, shows that Appellant's insurance commissions for the entire period were only $11,280.32. On this evidence, the jury was entitled to conclude the rescission exit strategy plans served no other purpose than to act as bait to trap the unwary. Even the three-year repayment period worked to Appellant's advantage as it effectively rendered him immune from civil suits during that period. Three investors testified that they had sued Appellant but their suits had been dismissed because the three-year period had not yet lapsed.
The evidence also suggests that to the extent Appellant returned any money, he used those payments to keep disgruntled investors quiet. Of the three investors who testified and sued Appellant, all three were among those who ultimately received their money back. In two instances, the paybacks coincided with the indictment or shortly thereafter. There was one other investor who did not sue Appellant but who demanded his money back; Appellant responded by threatening to sue that investor. Appellant returned that investor's money in February 2013, after Appellant was indicted.
We hold that, when viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found the essential elements of the offenses beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. We overrule Appellant's third point.
Denial of Continuance
In Appellant's first point, he contends the trial court abused its discretion by denying his first motion for continuance requesting a thirty-day delay. Appellant complains that his attorneys had only a week to prepare for trial and, further, argues a thirty-day delay was not unreasonable.
The record shows the State filed its indictment against Appellant on December 5, 2012, and that by December 13, 2012, Appellant had retained counsel. By December 31, 2012, two new retained attorneys had substituted in for Appellant.
The trial court's docket sheet shows that on March 18, 2013, the case was set number one for a jury trial on August 18, 2013. Although the record does not reveal why the trial court set the case number one on August 18, 2013, the indictment identifies thirty-seven different investors, presenting a sizeable logistical challenge. On July 10, 2013, the trial court approved an agreement between the State and Appellant to reset the case to January 27, 2014. The docket sheet contains the notation, "Be ready."
Thereafter, on August 27, 2013, Appellant's two new attorneys filed a motion to withdraw. This was still five months from the January 27, 2014 trial date. On September 26, 2013, the trial court granted their motion to withdraw. Also on September 26, 2013, Appellant's first attorney filed a motion to substitute back in as counsel, and the trial court granted his motion. This was still four months before the January 27, 2014 trial date.
On December 10, 2013, Appellant's first attorney filed another motion to withdraw as counsel. On January 21, 2014, two new attorneys—the two who ultimately represented Appellant at trial—filed a motion to substitute as counsel for Appellant and a motion for continuance. The trial court granted the motion to substitute counsel on January 22, 2014—five days before trial.
On the morning of trial, January 27, 2014, the trial court denied Appellant's motion for continuance without hearing argument or evidence and signed a written order denying it. After the trial court's ruling, defense counsel put Appellant on the stand, and Appellant acknowledged approaching his most recently-retained counsel about a week earlier about substituting in, acknowledged his most recently-retained counsel had explained to him the difficulties of getting a case ready so close to trial, and, finally, acknowledged that he was not surprised that the trial court denied his motion for continuance. Appellant also acknowledged that it was his understanding that his most recently-retained counsel had devoted practically all their time to his case in the time they had.
Appellant cites two cases, Ex parte Windham, 634 S.W.2d 718, 720 (Tex. Crim. App. 1982), and Greene v. State, 124 S.W.3d 789, 793-94 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd), for the proposition that a nine-part test applies to the denial of his motion for continuance. However, those are cases in which the denial of a motion for continuance resulted in the defendant having to proceed without the counsel of his choice. In Windham, when the defendant's retained attorney could not attend trial absent a continuance, the trial court's denial of the defendant's motion for continuance forced him to proceed to trial with his retained counsel's less-experienced partner. 634 S.W.2d at 719. And in Greene, the defendant filed a motion to substitute counsel and a motion for continuance a week before trial in which the defendant's proposed new counsel admitted he could not be ready in time for the trial set the following week. 124 S.W.3d at 793. The trial court denied both the motion to substitute counsel and the motion for continuance, and the defendant was required to proceed with her previously-retained counsel. Id. at 793-94. Appellant is not in the same procedural posture as the defendants in Windham and Greene. Unlike those defendants, Appellant proceeded to trial with the counsel of his choice. Appellant's reliance on Windham and Greene is, therefore, not persuasive.
Appellate courts review the denial of a motion for continuance for an abuse of discretion. Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 825 (1997); see Tex. Code Crim. Proc. Ann. art. 29.03 (West 2006). To show that the denial of a motion for continuance rose to the level of an abuse of discretion, an appellant must show he was prejudiced by defense counsel's lack of preparation time. Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995).
In Appellant's brief, he concedes defense counsel did a decent job during the trial on guilt/innocence considering the time restraints under which they were forced to work. For harm, Appellant focuses, instead, on his sentences and argues that the denial of his motion for continuance contributed to his punishments. Appellant does not, however, explain how the denial of his motion for continuance contributed to his punishments. Appellant does not show any specific prejudice linking the denial of his motion for continuance to the punishments he received, he does not allege unfair surprise, he does not lament an inability to effectively cross-examine any of the State's witnesses, and he does not show how any additional potential witness could have provided crucial testimony. See Janecka, 937 S.W.2d at 468; see also Heiselbetz, 906 S.W.2d at 511. "That counsel merely desired more time to prepare does not alone establish an abuse of discretion." Janecka, 937 S.W.2d at 468. We note that during the punishment trial, defense counsel called four witnesses on Appellant's behalf.
One of Appellant's witnesses had been a school teacher for forty-eight years. She and her husband were two of Appellant's recent investors who had invested "thousands and thousands of dollars" with him. She and her husband also contributed $18,000 to help pay for Appellant's legal defense of his criminal charges. Regarding the money contributed to Appellant's defense fund, she said, "That's how much faith we have in him." She added that they executed some promissory notes with Appellant too. When asked if she was concerned about how Appellant used the money, she answered, "I know in my heart of hearts [Appellant] will pay us back when he can."
She described a visit by two men from the State Securities Board as "one of the most devastating experiences [she had] ever had." Her husband had been bedridden for three-and-a-half weeks, had been critically ill, and had had several surgeries. The two men made demands and accusations, said derogatory things about Appellant, and said that she and her husband were victims of a crime. In spite of Appellant's convictions, she described Appellant as "a hard-working, entrepreneur man, as my husband is, making the best way he can to make a living, start a business, as my husband did. He's a good father, he's an excellent husband. I think he's a fine Christian man." She did not think she was one of Appellant's victims. She said she and her husband still trusted Appellant.
D.H., another of Appellant's witnesses during the punishment phase of trial, testified that he was the minister of music at his church and that he started The Promise, which he described as an epic musical drama on the life of Christ. The Promise had been showing in Glen Rose for twenty-five years. He knew Appellant. D.H. said the people of Granbury, the people at their church, and Appellant helped pay for his liver transplant. Appellant was the person who brought the money to him. Knowing Appellant, D.H. did not think society would benefit from his going to prison. D.H. trusted the court to effectively supervise Appellant if Appellant was put on probation. When asked what knowledge he could share with the jury to help them decide Appellant's punishment, D.H. answered, "[Appellant] was always a good friend to me and I was always a good friend to him, and I never had any kind of problems, financial or any other way, with [him] or his family."
D.H. denied ever investing any money with Appellant. He said he was not sure about whether Appellant had ever listed him as an investor in his companies, but he added, "He told me one time he was going to do that." D.H. agreed that as a very respected member of his church, being on that list "would give a measure of security and comfort for other members . . . to invest with [Appellant]." Regarding Appellant's assertion that he was an investor, when asked if it was possible he had invested $250, D.H. said, "I'm thinking very carefully on that. There is a possibility. I was sick with my liver at that time, and I could have done that." He added, "I couldn't positively say that, but I could have done that."
During the punishment phase, Appellant's counsel also called a supervisor with Hood County Adult Probation. She described what was involved when someone was placed on community supervision. The probation supervisor said that if Appellant was placed on the bond caseload for the current case and thereafter proceeded to steal another half a million dollars, that would not be considered a successful bond caseload situation. She said there was no such thing as a residential treatment program for thieves; the only thing community supervision had to offer was a one-day theft intervention class that was used for people who had written hot checks, but community supervision had nothing to address Appellant's situation. She said Appellant fell into the category of a white collar criminal, which she described as "very, very difficult to supervise."
The last witness Appellant's counsel called was Appellant's nephew, but because there was only eleven years' difference in their ages, the nephew saw Appellant more like a brother than an uncle. Except for this case, he had never known Appellant to have been convicted of a felony offense or any other offense.
Although Appellant's punishment was harsh, his convictions were for offenses that involved preying upon his fellow church members and abusively misusing religion as a means of exploitation. Additionally, the punishment trial itself revealed new developments.
In November 2012, the same month in which Appellant gave a statement to a securities investigator regarding the Patriot Insurance Company and one month before Appellant was indicted, Appellant obtained $116,000 from an octogenarian woman for yet another one of his companies, Lifestyle Protectors and Advisors, LLC. After doing a financial analysis, Sparks determined Appellant had used about $31,000 of this woman's money to pay back four of the investors who had testified earlier. Sparks also determined Appellant was using large portions of the money for his personal expenses, including the attorney's fees Appellant had paid to his previous attorneys.
Sparks said that Appellant did not stop with the octogenarian woman. In February 2013, after Appellant was indicted, Appellant received an additional $129,000 from the octogenarian woman's son. Still later, in March or April 2013, Appellant procured $548,000 from another person, J.H., and that money ended up in Appellant's personal checking account. J.H. denied the authenticity of the signature authorizing the transfer of his $548,000 into Appellant's personal checking account. J.H. said he strongly suspected Appellant forged his signature.
Sparks said Appellant received $100,000 from another person but did not elaborate. Appellant attempted but failed to entice a former major league baseball player to invest between $150,000 and $200,000 in a pitching device Appellant claimed to have invented. Sparks determined that Appellant also procured approximately $123,600 from a couple and then persuaded them to contribute another $18,000 to help him pay his attorney's fees defending against these criminal accusations.
In short, while being criminally investigated and even after being indicted, Appellant raised over a million dollars. From the evidence, the jury could have found that the criminal investigation and indictment acted only to embolden Appellant and as an accelerant to his proclivities. The Tarrant County District Attorney's office had seized Appellant's accounts and was holding the money as evidence. Appellant's own conduct, not the denial of his motion for continuance, adequately explains the jury-assessed punishments.
Appellant stresses that this was his first motion for continuance. This may have been Appellant's first motion, but it was not the first continuance. In July 2013, the trial court approved the parties' agreement to reset the case from August 18, 2013, to January 27, 2014. In any event, even a first motion for continuance is not a matter of right; whether to grant a first motion is a matter within the trial court's discretion. See Hyles v. State, 92 S.W.2d 450, 452 (Tex. Crim. App. 1936).
Appellant also complains about his previously-retained counsel; however, the choice of which counsel to retain was Appellant's, and the trial court consistently respected Appellant's choices. Appellant further complains about the difficulty of finding and retaining counsel competent to handle a financial case of this complexity. These difficulties were, however, present from the moment the State first filed the indictment. From December 2012 through trial in January 2014, Appellant was represented by counsel of his own choosing. Additionally, although Appellant's motion was verified and uncontroverted, the trial court, as the trier of fact, had the discretion to disbelieve even uncontroverted evidence. See Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. [Panel Op.] 1978). Ultimately the trial court possessed the discretion to grant or deny Appellant's motion for continuance: "A criminal action may be continued on the written motion of the State or of the defendant, upon sufficient cause shown; which cause shall be fully set forth in the motion." Tex. Code Crim. Proc. Ann. art. 29.03 (emphasis added). On this record, we hold the trial court did not abuse its discretion by denying Appellant's motion for continuance. We overrule Appellant's first point.
Denials of Appellant's Motions for Mistrial
In his second point, Appellant contends the trial court erred by denying his motions for mistrial when the State violated his motion in limine regarding extraneous bad acts. The motion in limine, which the trial court granted, prohibited the State, its agents, its employees, and its witnesses from mentioning, alluding to, or referring to, in any manner, any prior convictions or alleged violations of law or extraneous offenses or bad acts by Appellant in this cause in the presence of the jury. Appellant contends the State acted deliberately or recklessly in preparing its witnesses for trial. Appellant asserts that the State engaged in improper prosecutorial tactics and that the taint caused by the State's actions was impossible to remove. Finally, although no instruction to disregard was given, Appellant contends a jury would not have been able to abide by one even if one had been given.
We review a denial of a motion for mistrial under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070 (2000). The trial court has discretion when determining the remedy for a violation of a motion in limine. Fairley v. State, 90 S.W.3d 903, 904 (Tex. App.—San Antonio 2002, no pet.). To preserve an error for appeal, a defendant should (1) make a timely objection, (2) request an instruction to disregard, and (3) move for a mistrial if an instruction to disregard is not sufficient to cure the error. Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004). If a defendant fails to request an instruction to disregard, a timely motion for mistrial is nevertheless sufficient to preserve error if the error is incurable. Id. at 70. However, if the error is curable, "[t]he party who fails to request an instruction to disregard will have forfeited appellate review of that class of events that could have been 'cured' by such an instruction." Id. Consequently, if a defendant does not request an instruction to disregard, our review is limited to the question of whether the complained-of testimony could have been cured by such an instruction. Id.
Appellant first complains that the prosecutor asked a witness whether Appellant was asked to leave their church. Appellant objected on the basis of relevance and because it violated the order granting Appellant's motion in limine, and the trial court sustained Appellant's objection. Outside the presence of the jury, Appellant requested a mistrial that the trial court denied.
Appellant was the head usher at the church he attended; the majority of the complainants attended the same church as Appellant. A theory of the State's case was that Appellant had perpetrated an affinity fraud through the church. Sparks defined an affinity fraud as a fraud that was committed by an individual who joined the same social club, was a member of the same ethnic group, joined the same church, or had some other way of identifying with the particular individuals that the person was targeting.
"A mistrial is an appropriate remedy in 'extreme circumstances' for a narrow class of highly prejudicial and incurable errors." Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009) (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)). Assuming the trial court properly sustained the objection, we presume jurors follow instructions, and Appellant does not point to any evidence suggesting that the jurors in this case would have failed to follow an instruction to disregard if one had been given. See Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009) (holding that "[i]nstructions to the jury are generally considered sufficient to cure improprieties that occur during trial" and that courts "generally presume that a jury will follow the judge's instructions"); see also Ladd, 3 S.W.3d at 567 (holding that trial court could have reasonably concluded instruction to disregard was sufficient to cure any harm). Furthermore, two other witnesses testified that there was a point when Appellant no longer attended the church. Whatever the explanation, the jury was aware Appellant had at some point stopped affiliating with the church. More than that, however, numerous witnesses also testified that Appellant stopped returning their calls and could no longer be contacted. The jury was further aware of two meetings Appellant had with investors that went very poorly. Consequently, it was no secret to the jury that Appellant's relationship with his investors, which would have necessarily included his fellow church members, was deteriorating. Nothing in this question itself suggests that it was so highly prejudicial and incurable that an instruction to disregard would not have cured it. See Ocon, 284 S.W.3d at 884.
Appellant complains about a second instance that occurred while his counsel was cross-examining another witness. When asked generally about Appellant's business investments, the witness responded, "The stake in the ground was, to me, when I—when I found out what happened in Tarrant County this last year, and—." At this point, Appellant objected that the answer was nonresponsive, and the trial court sustained his objection. A few minutes later with the same witness, however, the following occurred:
Q. [By Appellant:] Okay. Fair enough. My question to you is, you're really at the point now, no matter what you're told he spent or tried, you're not going to believe anything other than you have been had.Appellant again objected, and the trial court again sustained Appellant's objection. After the witness was excused, outside the presence of the jury, Appellant again requested a mistrial that the trial court again denied.
A. Not from the happenings of 2013, no.
Q. Okay.
A. With his arrest record in Tarrant County last—
Regarding the first comment, Appellant objected and cut the witness off before the witness said anything damaging. Regarding the second comment, the witness said Appellant had been arrested in Tarrant County in 2013; however, the witness said nothing about why Appellant was arrested. We are persuaded that an instruction to disregard any reference to unidentified problems Appellant might have been having in Tarrant County and to focus strictly upon the Hood County allegations would have been effective. Appellant was already facing a bevy of investors in Hood County, and this ambiguous reference to problems in another county would not have changed the overall picture. Nothing in the answer suggests that it was so highly prejudicial and incurable that an instruction to disregard would not have cured it. See Ocon, 284 S.W.3d at 884. We presume jurors follow instructions, and Appellant does not point to any evidence suggesting that the jurors in this case would have failed to follow any instruction if one had been given. See Gamboa, 296 S.W.3d at 580; see also Ladd, 3 S.W.3d at 567.
For all the above reasons, we hold that the trial court did not abuse its discretion by denying Appellant's motions for mistrial, and we overrule Appellant's second point.
Conclusion
Having overruled all of Appellant's points, we affirm the trial court's judgments on counts one, two, and three.
The State dismissed count four at trial, so it was not before us. --------
/s/ Anne Gardner
ANNE GARDNER
JUSTICE PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ. LIVINGSTON, C.J., concurs without opinion. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: April 21, 2016