Opinion
No. 05-09-01088-CR
01-31-2012
JASMINE MARIE APONTE, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM and Opinion Filed January 31, 2012
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-80652-08
OPINION
Before Justices Bridges, Richter, and Murphy
Opinion By Justice Richter
A Collin County grand jury issued a true bill of indictment, accusing appellant, Jasmine Marie Aponte, with one count of making a false statement to obtain credit and one count of money laundering. A jury convicted appellant on both counts and assessed a $10,000 fine and probated ten year sentence for each offense. In four issues, appellant challenges venue, the jury charge, and the legal sufficiency of the evidence. For the following reasons, we affirm the judgment of the trial court. BACKGROUND
Barbara Miller (complainant) lives in Colorado. In 2006, a close friend told Miller that she was investing in residential real estate through Durwan Green (Green) and his real estate investment company, Alpha & Omega Estates, LLC (Alpha & Omega). Miller decided it would be a good opportunity for her as well. Green owned Alpha & Omega and also worked as a mortgage broker for Alethes d/b/a Amerinest Mortgage. Appellant was a notary, a real estate agent with The Michaels Group, and also worked as an independent contractor for Alpha & Omega, supervising the office staff and providing marketing for the company.
Alpha & Omega selected homes for investors, handled all the paperwork, and found tenants to rent the homes after they had been purchased. Miller was told there was "nothing to lose" because either the rent payments would cover the mortgage costs or Alpha & Omega would pay the mortgage payments. Miller testified she was also told she would receive a monetary incentive of $4,000 for each property she purchased.
In August 2006, Green selected a residence located at 406 Sagebrush Trail, in Murphy, Collin County, Texas, for Miller to purchase. Green flew to Denver, Colorado and met Miller in a hotel lobby to complete the closing documents for the transaction. Although appellant notarized all the documents for the transaction, she was not present at the time Miller signed the documents and did not notarize the documents in Miller's presence. After Miller signed the paperwork, Green gave Miller a check for $4,000. Miller purchased two additional homes through Alpha & Omega between August and December, 2006. Initially, everything proceeded as promised. After Miller purchased the residence, she sometimes had tenants and received rent. Other times Alpha & Omega sent Miller money for the mortgage payments. Miller testified that when she called Alpha & Omega, she usually talked to appellant. Miller testified that at some point she received an e-mail from appellant stating that Alpha & Omega would only cover half of the mortgage payments when the homes were not rented. In early 2007, one of Alpha & Omega's checks to Miller was returned for insufficient funds and no one at Alpha & Omega would return her phone calls. Miller subsequently learned there were no tenants in any of her properties. Without rent payments, she could not maintain the mortgages and the lender foreclosed on Miller's property in Murphy, Texas.
Miller contacted an attorney, filed a police report, and ultimately complained to the Collin County District Attorney's Office. Appellant and Green were indicted and pleaded not guilty. Appellant was tried, along with co-defendant Green, before a jury. At trial, Miller testified that when she examined the mortgage documents for the Murphy property, she discovered that both her income and employment history were inflated and the loan documents stated the home would be used as a second home rather than an investment property. Miller testified that her signature was forged on the initial loan application and several other documents. Miller stated she did not recall ever seeing the contract of sale authorizing a three percent commission to appellant and she further testified it was not her signature on the document. She also discovered that $43,000 from her loan proceeds was disbursed directly to Alpha & Omega at closing, after the seller was paid for the home. According to Miller, she did not know that Alpha & Omega would receive $43,000 from the purchase of the property and would not have agreed to the purchase had she known. Miller testified that the closing documents pertaining to the sale of the Murphy residence contained the notary stamp, seal, and signature of appellant, dated August 18, 2006.
At trial, the State's expert witness was Dr. Gary Lacefield, compliance officer for W.R. Starkey Mortgage, president of Risk Mitigation Group, and formerly the supervisor of lending investigations for the U.S. Department of Housing and Urban Development. Lacefield testified that this case involved two loans, the first for $186,000 and a second for $46,500. Miller borrowed money to purchase the property by means of a "stated income stated asset loan" which did not require her to provide documentation to support her claimed income. Lacefield testified that Miller's stated income and documentation stating that the property would be a second home were significant factors in the loan process and would have had an impact on whether the loans were granted and what interest rate could be obtained. A home occupied by its owner typically qualified for a lower interest rate than did a home purchased as a rental property. Lacefield testified that in a transaction such as this, the mortgage lender and the title company rely on the mortgage broker to provide them with accurate information. Lacefield testified that based on the loan documentation, it appeared that Alethes d/b/a Amerinest Mortgage brokered Miller's loans to Southstar Funding (the lender), through Green, the broker of record on the loans.
Lacefield stated that according to his review of the documents, New Frontier Title Agency was the title company and settlement agent for the purchase of the Murphy residence. He stated there were significant discrepancies in the HUD-1 settlement statements provided to buyer, lender and title company. HUD-1 settlement statements are required to list every payment related to the sale and the source of such payment. According to Lacefield, the buyer, lender, and title company should receive identical copies of the HUD-1 settlement statement. Here, the settlement statements for the Murphy property were completely different. The loan amounts and settlement charges to the borrower differed on the statements. The statements included commissions to be paid but the amounts reflected on the lender's statement did not match the amounts on the title company's statement. The lender's settlement statement reflected loan proceeds in the amount of $224,967 being paid to D.R. Horton, the seller. However, the settlement statements for seller and the title company reflected a payment to D.R. Horton of $181,445. The title company's statement included a $43,521.96 cash disbursement to Alpha & Omega; however, this $43,521.96 disbursement was not listed on the seller's or lender's statements. Lacefield opined that the lender was not aware of the payment to Alpha & Omega and had not approved it. He further opined that $43,521 was not an appropriate commission to be paid to the mortgage broker. Lacefield testified that two of the three signature pages on the HUD-1 settlement statements were not original signature pages. His review of the closing documents indicated that appellant was the notary for the transaction and Jasmine Lewis, apparently the same person, was listed as the real estate agent receiving a $6,761 commission on the transaction. He opined that if the same individual notarizing documents at the closing also received a commission as the real estate agent representing the buyer, it was a fraudulent loan. According to Lacefield, "there is a hard and fast rule that anyone with an interest in the property cannot participate in the verification."
Lacefield then described this transaction as a typical mortgage fraud scheme involving a straw buyer. He stated that the person perpetrating the fraud starts with a borrower who has good credit and can be qualified for a series of loans over a short period of time. He explained that typically when a lender funds a loan, they quickly sell the loan to another lender that actually holds and services loans. So long as loan payments are made timely for a period of time, the original lender does not have to repurchase the loan. When the loan goes into default, the likelihood of a fraud investigation by the lender is diminished because the original lender no longer holds the loan.
Green testified at trial. He explained that his company, Alpha & Omega, looked for residential loans that were about to go into foreclosure, negotiated deals with the owners to buy the properties or take over their notes, fixed up the houses, and resold the houses for a profit. Alpha & Omega also received builder deals in which builders gave Alpha & Omega discounted house prices. He testified that the payment of $43,521.96 to Alpha & Omega was a builder's incentive from the seller, D.R. Horton, for finding a buyer for the Murphy residence. He stated the title company sent him a sales contract from D.R. Horton giving him a twenty percent bonus from the builder. However, when asked to produce or identify the document, he was unable to do so. He further testified that he showed Miller the HUD-1 form and told her the amount of money he would be receiving. According to Green, she did not object. Green testified that during the same period of time, he also worked as a loan officer for Amerinest Mortgage, the mortgage broker who qualified Miller for the loans on the Murphy residence. According to Green, all the documentation pertaining to Miller's purchase of the Murphy residence was prepared by the New Frontier Title Agency. However, he also testified that the documents were prepared with information provided by Miller to Angie Roberts, a loan processor who worked for him as an independent contractor. He testified that when he met Miller in Colorado, he went through every document and explained them in detail before she signed them. He denied promising Miller that the investment was risk-free and only agreed to help Miller find her first tenant and pay her mortgage until her first tenant began paying rent.
When asked why appellant notarized the documents as Jasmine Aponte and received a real estate agent's commission as Jasmine Lewis, Green explained that appellant was going through a divorce at the time of the transaction and was in the process of going back to her maiden name. Her real estate license was in the name of Jasmine Lewis but her notary stamp reflected the name Jasmine Aponte.
Green acknowledged that if there were three sales contracts with different purchase prices, there was fraud in the transaction. He further agreed that it would be fraudulent to have three HUD-1 settlement statements with differing payment amounts but identical signature pages. However, he stated that he did not know anything about the fraud in this case and did not prepare any of the documentation.
At the close of the State's case, appellant made an oral motion for directed verdict on the grounds that the State did not meet their burden of proof on any of the charges against her. Appellant did not object to venue or jurisdiction in the motion. A jury convicted appellant on all counts. After the jury returned its verdict but prior to the sentencing hearing, appellant filed a motion for instructed verdict, arguing the State failed to prove the essential elements of the offenses alleged against her and failed to show that venue was proper in Collin County, Texas. The trial court denied appellant's motion and the jury sentenced appellant to ten years of community supervision and a fine of $10,000 on both counts. This appeal followed. DISCUSSION
Appellant raises four issues on appeal. In her first issue, appellant contends the trial court erred in denying her oral motion for directed verdict at the close of the State's case and her written motion for instructed verdict filed after the verdict based on improper venue. In her second issue, appellant argues the trial court erred in denying her request for a jury definition of "material" in the jury charge. In her third and fourth issues, appellant challenges the legal sufficiency of the evidence to support her conviction for making a false statement to obtain credit and for money laundering.
Venue
Appellant asserts that because the State failed to prove venue was proper in Collin County, Texas, her conviction on both counts should be dismissed with prejudice. Appellant contends there was no evidence that any overt act related to either alleged offense occurred in Collin County and the notary seals are evidence that all of the documents pertaining to this transaction were notarized in Dallas County. The State responds that appellant failed to timely raise the issue of venue. We presume venue was proved in the trial court unless the matter was disputed in the trial court or the record affirmatively shows to the contrary. Tex. R. App. P. 44.2(c)(1). Venue must be proved only by a preponderance of the evidence, which may be either direct or circumstantial. Tex. Code Crim. Proc. Ann. art. 13.17 (West 2005); see Black v. State, 645 S.W.2d 789, 790 (Tex. Crim. App. 1983).
During trial, appellant's counsel moved for a directed verdict at the close of the State's case and before closing arguments. According to the record, the motion for directed verdict was based on sufficiency of the evidence and did not raise an issue as to venue. The jury returned its verdict against appellant on June 11, 2009. On June 19, 2009, prior to the sentencing hearing, appellant's counsel filed a written motion for instructed verdict, raising a venue issue for the first time.
Generally, a defendant's motion for instructed verdict which specifically challenges the proof of venue timely raises the issue. Black, 645 S.W.2d at 790; Braddy v. State, 908 S.W.2d 465, 467 (Tex. App.-Dallas 1995, no writ); Cunningham v. State, 848 S.W.2d 898, 901 (Tex. App.-Corpus Christi 1993, writ ref'd). The issue must be raised sometime during the trial at a time when the State could have reopened its evidence to correct the evidentiary deficiency. See Cunningham, 848 S.W.2d at 901-02; see also Wyatt v. State, 268 S.W.3d 270, 272 (Tex. App.-Amarillo 2008, no pet.). "[I]f the State is placed on notice that venue has not been proven while it is in a position to correct the evidentiary deficiency by reopening its case, the defendant has timely raised the issue, and the appellate court must review the evidence to determine whether venue was proven." Cunningham, 848 S.W.2d at 902. The trial court has the discretion to permit a party, including the State, to reopen its case to prove venue. See Wyatt, 268 S.W.3d at 272 (citing Cox v. State, 494 S.W.2d 574, 575 (Tex. Crim. App. 1973) (trial court has discretion to reopen evidence to allow State to prove venue after both sides have rested); Martin v. State, 160 Tex. Crim. 364, 367, 271 S.W.2d 279, 280 (1954) (trial court may permit the State to reopen after a motion for instructed verdict and after the charge has been presented to the accused)); see also Tex. Code Crim Proc. Ann. art. 36.02 (West 2007). However, if a defendant waits to challenge venue in a motion for new trial, the issue is not timely raised. Gonzales v. State, 486 S.W.2d 380, 381 (Tex. Crim. App. 1972); Cunningham, 848 S.W.2d at 901.
Here, the State was not placed on notice that venue had not been proven while it still had the opportunity to correct any evidentiary deficiency by reopening its case. Appellant did not raise the issue of venue until after the jury had returned its verdict of guilty on both counts. Appellant's motion, filed ten days after the jury's verdict, was entitled "motion for instructed verdict." However, the jury had already returned its verdict and the trial court did not have the authority to grant a verdict different from the verdict rendered by the jury. See State v. Savage, 933 S.W.2d 497, 499 (Tex. Crim. App. 1996); Dunn v. State, 176 S.W.3d 880, 885 (Tex. App.-Fort Worth 2005, no pet.); see also Tex. Code Crim. Proc. Ann. art. 42.01 (West Supp. 2011). Appellant's motion for instructed verdict and her venue challenge were untimely. See Cunningham, 848 S.W.2d at 901-02. Therefore, we conclude the trial court did not err in denying appellant's motion for instructed verdict.
Because appellant did not timely raise the issue of venue at trial, appellant waived her venue challenge. See Creekmore v. State, 860 S.W.2d 880, 889 (Tex. App.-San Antonio 1993, writ ref'd) ("Improper venue, not being a jurisdictional flaw, may be waived by the defendant's failure to raise it as an issue at trial."). Appellant's first issue is overruled.
Jury Charge
In her second issue, appellant complains that the trial court erred by denying appellant's request that a definition of the term "material" be included in the jury charge. Count I of the indictment charged appellant with intentionally or knowingly making a materially false or misleading written statement to obtain property or credit. See Tex. Penal Code Ann. § 32.32(b) (West 2011). The word "material" is not defined in the penal code. Appellant's counsel requested the trial court provide the jury with the Black's Law Dictionary definition of "material" but the trial court denied appellant's request.
A claim of jury-charge error is reviewed using the procedure set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). When reviewing a claim of jury-charge error, we first determine whether error occurred. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)). If error exists and appellant objected to the error at trial, reversal is required if the error was "calculated to injure" the appellant's rights, which means that there was "some harm." Barrios, 283 S.W.3d at 350; Almanza, 686 S.W.2d at 171, superseded on other grounds by rule as stated in Rodriguez v. State, 758 S.W.2d 787, 788 (Tex. Crim. App. 1988). If the court determines "some harm" occurred, it must reverse the conviction. Barrios,283 S.W.3d at 350 (citing Almanza, 686 S.W.2d at 171). The degree of harm is determined in light of the entire charge, the state of the evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Almanza,686 S.W.2d at 171 . The purpose of the jury charge is to inform the jury of the applicable law and guide the jurors in applying it to the facts of the case. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). The trial judge must submit to the jury "a written charge distinctly setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury." Tex. Code Crim. Proc. Ann. art 36.14 (West 2007). If a phrase, term, or word is statutorily defined, the trial judge must submit the statutory definition to the jury. Alexander v. State, 906 S.W.2d 107, 111 (Tex. App.-Dallas 1995, no pet.). However, if a word or phrase has not been statutorily defined, the trial judge is not required to define the word or phrase in the charge to the jury. Ramos v. State, 303 S.W.3d 302, 308 (Tex. Crim. App. 2009). In the absence of a statutory definition, words are to be taken and understood in their common, ordinary, and usual meanings. Tovar v. State, 165 S.W.3d 785, 790 (Tex. App.-San Antonio 2005, no pet.); Roise v. State, 7 S.W.3d 225, 242 (Tex. App.-Austin 1999, pet. ref'd). Jurors are presumed to know and apply such common and ordinary meanings. Alexander, 906 S.W.2d at 111. The trial court has broad discretion in submitting proper definitions and explanatory phrases to the jury. Roise, 7 S.W.3d at 242. Although appellant complains that the trial court erred by denying appellant's request that a definition of the term "material" be included in the jury charge, we disagree. Because the word "material" is not statutorily defined, the trial judge was not required to submit a definition of the word to the jury. Alexander, 906 S.W.2d at 111. We conclude the trial judge did not err in refusing to submit appellant's requested definition. We overrule appellant's second issue.
Legal Sufficiency Of The Evidence
In her third and fourth issues, appellant contends the evidence is legally insufficient to show she committed the offense of making a materially false or misleading statement to obtain property or credit and the offense of money laundering. In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offenses beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). We defer to the trier of fact to resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Gear, 340 S.W.3d at 746. The jury is the sole judge of the witnesses' credibility and the weight to be given their testimony and therefore, is free to accept or reject any or all evidence presented by either side. See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010); Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008).
Count I of the indictment charged appellant with the offense of intentionally or knowingly making materially false or misleading written statements to obtain property or credit for Miller by notarizing Miller's signature on loan documents for Miller's first and second mortgage loans on the Murphy property. A person commits such an offense if he "intentionally or knowingly makes a materially false or misleading written statement to obtain property or credit, including a mortgage loan." Tex. Penal Code Ann. § 32.32(b). Appellant contends the evidence introduced at trial clearly indicates that the only misrepresentations at issue were appellant's notary attestations that she personally witnessed Miller's signatures on the relevant mortgage loan documents. Appellant asserts that such misrepresentations were not material to the transaction, and argues there was no evidence that had the lender known of the misrepresentations, they would not have processed the loans. In response, the State contends that appellant's false attestations facilitated approval of a mortgage loan that would not otherwise have been granted and thus, was sufficient evidence to support the jury verdict.
Viewing the evidence in a light most favorable to the jury's verdict, the record contains evidence that appellant backdated and notarized Miller's signatures on loan documents for the sale of the Murphy residence. Lacefield testified that the purpose of the notary stamp is to verify the identity of the person signing the document. Some of the documents notarized by appellant were signed by Miller. However, Miller testified that many of the documents containing her signature were not actually signed by her. According to the record, appellant's notary stamp, seal, and signature were present on documents on which Miller's signature was forged.
The record also contains evidence that appellant lied to investigators when asked if she personally verified Miller's signature on the documents. Miller and Green testified that appellant was not present in Denver, Colorado when Miller signed the documents. Kelley Adley, a police officer working as an investigator for the Special Crimes Division of the Collin County District Attorney's office, testified that appellant told Collin County investigators that she notarized the documents in her office in Dallas in the presence of Miller.
Lacefield testified that without notary signatures on the loan documents, the sale would not have been completed and the lender would not have approved Miller's loans. He also testified that it was fraudulent for the same individual notarizing documents at the closing to receive a commission as the real estate agent representing the buyer.
It was the role of the jury to judge the credibility of the witnesses' testimony and we must defer to that determination. See Jackson, 443 U.S. at 319; Isassi, 330 S.W.3d at 638. Reviewing all the record evidence in the light most favorable to the verdict, as well as the reasonable inferences arising from that evidence, we conclude a rational jury could have found appellant guilty of all of the elements of the offense beyond a reasonable doubt. See Jackson , 443 U.S. at 319; see also Tex. Penal Code Ann. § 32.32(b).
Count II charged appellant with knowingly acquiring or maintaining an interest in, possessing, or transferring the proceeds of criminal activity, U.S. currency in the amount of $20,000 or more but less than $100,000, in connection with the purchase of the house in Murphy, Texas. Count II of the indictment further stated such currency was proceeds of the offense of making a false statement to obtain property or credit. A person commits the offense of money laundering if he knowingly (i) acquires or maintains an interest in, conceals, or possesses the proceeds of criminal activity, or (ii) conducts, supervises, or facilitates a transaction involving the proceeds of criminal activity. Tex. Penal Code Ann. § 34.02(a)(1), (2) (West 2011). "Criminal activity" includes any offense that is classified as a felony in Texas. Id. at § 34.01(1)(A). "Proceeds" means funds acquired directly or indirectly from, produced through, or realized through an act. Id. at § 34.01(4). Appellant contends the State presented no evidence that she received proceeds from the sale of the Murphy residence other than the testimony of Miller who stated she thought appellant received $6,000. The State responds there was sufficient evidence to support the jury's verdict that appellant knowingly acquired, received, or possessed an interest in the fraudulent loan proceeds through her involvement with Green and her actions as the real estate broker and notary for the transaction.
Green testified that appellant performed many roles as an independent contractor for Alpha & Omega. She managed the office staff and handled all marketing for the company. According to the record, appellant was in frequent, direct contact with Miller and responded to Miller when she questioned the arrangements for mortgage payments. Appellant was authorized to sign checks on the company bank account. Green testified that appellant was paid commissions and bonuses for the work she performed for Alpha & Omega.
The record reflects that appellant was the notary and the buyer's real estate agent for a transaction in which the buyer, Miller, borrowed $232,500 to pay for the Murphy house, that unbeknownst to Miller, was being sold by the seller, D.R. Horton, for $181,445. According to the record, appellant was paid a commission of $6,761 in her capacity as the real estate agent on the Murphy transaction. The record also reflects that Alpha & Omega received a disbursement of $43,521.96 from Miller's loan proceeds. Based on Green's testimony that he paid appellant commissions and bonuses for work she performed for Alpha & Omega, the jury could have believed that appellant's compensation for her role in the Murphy transaction included more than just her commission as the buyer's real estate agent.
The State contends that appellant's false statements as a notary, business association with Green, and facilitation of a mortgage that was $43,000 in excess of the sale price of the residence provided ample evidence to support her conviction for money laundering. It was the jury's function to resolve any conflicts in the evidence, and the jury was free to accept or reject any and all of the evidence presented by either side. Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). Considering all the evidence in the light most favorable to the verdict, we conclude that the jury was rationally justified in finding guilt beyond a reasonable doubt and the evidence is sufficient to support appellant's conviction for money laundering. See Gear, 340 S.W.3d at 746. Appellant's third and fourth issues are overruled. CONCLUSION
Having overruled all of appellant's issues, we affirm the judgment of the trial court.
MARTIN RICHTER
JUSTICE
Do Not Publish
Tex. R. App. P. 47
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