Opinion
No. 06-11-00135-CR
01-31-2012
ZAKEE KALEEM ABDULLAH, A/K/A ROBERT WHITE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 202nd Judicial District Court
Bowie County, Texas
Trial Court No. 11F0008-202
Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Following a bench trial, Zakee Kaleem Abdullah, also known as Robert White, was convicted of theft in an amount of $1,500.00 or more, but less than $20,000.00 and was sentenced to two years' imprisonment in state jail. Abdullah challenges the legal sufficiency of the evidence supporting his conviction and complains that the trial court erred in failing to grant his motion to quash the indictment. We hold that Abdullah's conviction was supported by legally sufficient evidence, find that denial of his motion to quash was harmless, and affirm the judgment of the trial court.
I. Abdullah's Conviction Was Supported by Legally Sufficient Evidence
A. Standard of Review
In reviewing the legal sufficiency of the evidence in this bench trial, we review all the evidence in the light most favorable to the verdict to determine whether any rational judge could have found the essential elements of the charged offense of theft beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (4-1-4 decision) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref'd) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917-18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the fact-finder "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19).
B. Factual Background
Rosie L. Duckett sustained an injury at work, which required surgery. Duckett began seeking legal advice for a worker's compensation claim. A long-time acquaintance who worked at a law firm referred her to White, a false name used by Abdullah throughout his dealings with Duckett. Duckett believed that Abdullah was an attorney and requested his legal assistance. Duckett paid Abdullah $2,000.00 upon his promise that he would assist her in filing a worker's compensation claim and $1,500.00 for his legal assistance in filing a medical malpractice lawsuit. A written agreement between Abdullah and Duckett assured that the money would be returned if the worker's compensation claim was unsuccessful.
While Duckett only knew Abdullah as Robert White, we refer to Abdullah's real name in the remainder of this opinion.
After the passage of approximately nine months, it became clear to Duckett that her claims were not being pursued, and she made a demand for the return of her money. Abdullah told Duckett that he would return $1,500.00 of her money on a set date. That date passed, but the money was not returned. Instead, Duckett received a letter from Abdullah stating that he "was caught comming [sic] through Harris County with drugs cocaine" and that the money had been confiscated during the drug bust. Abdullah informed Duckett that he was "behind bars again," and pleaded for her to send him an additional $100.00. Becoming concerned, Duckett took this letter to the police station. Abdullah had not been arrested. Instead, Duckett learned that Abdullah was a convicted felon out on parole during the time he promised to pursue her claims. Detective Kim Weaver testified that Duckett had been scammed.
C. Analysis
Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge "sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. This standard applies "to all trials, whether to the bench or to the jury." Id.
The indictment alleged that Abdullah
unlawfully appropriate[d], by acquiring or otherwise exercising control over property, to-wit: U.S. Currency, of the value of $1,500 or more but less than $20,000, from Rosie Duckett the owner thereof, without the effective consent of the owner, and with intent to deprive the owner of the property.
Under the general theft statute through which Abdullah was charged, the State had the burden to establish that (1) Abdullah, (2) with intent to deprive the owner (Duckett) of property, (3) unlawfully appropriated property, (4) without the effective consent of the owner. TEX. PENAL CODE ANN. § 31.03 (West Supp. 2011); Baker v. State, 986 S.W.2d 271, 274 (Tex. App.—Texarkana 1998, pet. ref'd). Appropriate means "to acquire or otherwise exercise control over property other than real property." TEX. PENAL CODE ANN. § 31.01(4)(B) (West Supp. 2011). The Texas Penal Code provides that consent is ineffective if "induced by deception . . . ." Tex. Penal Code Ann. § 31.01(3)(A) (West Supp. 2011). Deception includes "failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true." TEX. PENAL CODE ANN. § 31.01(1)(B) (West Supp. 2011).
Abdullah argues that the evidence was insufficient to demonstrate that the currency was taken without Duckett's consent. He points to Duckett's testimony stating she gave Abdullah the money freely and voluntarily pursuant to the signed agreements in exchange for "preparation of ... worker's compensation" and "legal assistance." To demonstrate that he completed his end of the bargain, Abdullah cites to Duckett's testimony that the worker's compensation claim "was filed, but I didn't get no response on it." He had also sent Duckett's doctor a settlement agreement, which was rejected.
Abdullah was a convicted felon on parole. Duckett was introduced to Abdullah through an acquaintance who worked at a law firm. She mistakenly believed Abdullah was an attorney with that law firm and requested his legal assistance. Abdullah's written agreement to provide legal services failed to correct her impression. Based upon Abdullah's misrepresentation as to "who he was and what his ability was to have helped," Duckett agreed to hire him. She testified she had been deceived by Abdullah. Further, Abdullah was prohibited by law from attempting to obtain an economic benefit for himself by contracting to represent Duckett for actions involving her personal injuries. We find the evidence legally sufficient to demonstrate that Duckett's consent to pay the money was ineffective due to Abdullah's deception.
A person not licensed to practice law commits the crime of unauthorized practice of law if, with intent to obtain an economic benefit, they contract with any person to represent that person with regard to personal causes of action for personal injury or advise any person as to the person's rights and the advisability of making claims for personal injuries. TEX. PENAL CODE ANN. § 38.123 (West 2011).
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Yet, "a claim of theft made in connection with a contract requires proof of more than an intent to deprive the owner of property and subsequent appropriation of the property." Baker v. State, 986 S.W.2d 271, 274 (Tex. App.—Texarkana 1998, pet. ref'd). Neither the mere failure to perform a contract nor the mere failure "to return or pay back money after failing to perform a contract, for the performance of which the money was paid in advance," are sufficient to establish guilt of theft. Phares v. State, 301 S.W.3d 348, 352 (Tex. App.—Beaumont 2009, pet. ref'd). When alleging theft in connection with a contract, the State "must prove the defendant did not perform the contract and knew he was not entitled to the money, not merely that there is a dispute about the amount rightfully owed." Jacobs v. State, 230 S.W.3d 225, 229 (Tex. App.—Houston [14th Dist.] 2006, no pet.).
Abdullah was to assist in filing a medical malpractice lawsuit. He was also required to achieve a successful outcome for Duckett on her worker's compensation or would face the obligation to return her money. There is nothing in the record indicating that the medical malpractice action was filed, and a successful outcome with the worker's compensation claim was not achieved. Nonetheless, Abdullah did not return Duckett's money when asked. Instead, Abdullah sent Duckett a letter claiming that the money was confiscated as a result of a drug bust, when, in fact, Abdullah had not been arrested. A fact-finder could have determined that Abdullah's letter was simply an attempt to avoid returning money which he knew he was not entitled to. Thus, the evidence was legally sufficient for a fact-finder to determine beyond a reasonable doubt that Abdullah, without effective consent, acquired Duckett's money with intent to deprive her of it.
Abdullah argues that theft by deception was not charged in the indictment, and a conviction based on this theory violated his due process rights. However, because the State did not allege any particular statutory manner of commission, the hypothetically correct jury charge included all alternative methods of commission contained in the theft statute, including theft by deception. See Geick v. State, 349 S.W.3d 542, 546 (Tex. Crim. App. 2011); Higginbotham v. State, No. 06-11-00094-CR, 2011 WL 6187139, at *1 n.1 (Tex. App.—Texarkana Dec. 14, 2011, no pet. h.).
We overrule Abdullah's first point of error.
II. Abdullah Was Not Harmed by the Overruling of His Motion to Quash
We review de novo a trial court's denial of a motion to quash. Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007). Abdullah filed a motion to quash the State's indictment complaining that he had not received effective notice to prepare his defense "due to the State's failure to allege in the indictment the method of appropriation." Abdullah was correct that the indictment did not allege the manner in which he unlawfully appropriated Duckett's property. As we stated in Askari v. State, Abdullah's motion to quash triggered "the State's duty to further specify the manner of the alleged unlawful appropriation." 129 S.W.3d 160, 166 (Tex. App.—Texarkana 2003, pet. ref'd). "A defendant has a constitutional right to sufficient notice so as to enable him or her to prepare a defense." Hughen v. State, 265 S.W.3d 473, 481 (Tex. App.—Texarkana 2008), aff'd, 297 S.W.3d 330 (Tex. Crim. App. 2009).
However, "this due-process requirement may be satisfied by means other than language in the charging instrument." Kellar v. State, 108 S.W.3d 311, 313 (Tex. Crim. App. 2003); Hughen, 265 S.W.3d at 481. "When a motion to quash is overruled, a defendant suffers no harm unless he did not, in fact, receive notice of the State's theory against which he would have to defend." Kellar, 108 S.W.3d at 313 (Tex. Crim. App. 2003); see Askari, 129 S.W.3d at 166-67.
The record in this case demonstrated Abdullah's knowledge that the State would use the theory of theft by deception. Months before trial, Abdullah filed a motion "object[ing] to the first indictment to prohibit the State from using theories of effective concent [sic] was induced by deception or coercion." He also filed a motion reciting that he was charged with "holding one self [sic] out as a lawyer" in another court, and arguing that this charge "should have been included in the original indictment of theft of property; because they are involving the same act." Because Abdullah was aware that he would be defending the theory of theft by deception through his impersonation of an attorney, we find that the failure to allege the manner of illegal appropriation had no detrimental impact on his ability to present a defense. See Askari, 129 S.W.3d at 167.
We overrule Abdullah's last point of error.
III. Conclusion
We affirm the trial court's judgment.
Jack Carter
Justice
Do Not Publish