No. 05-10-00092-CR
Opinion Filed May 24, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-01119-IW.
Before Justices MOSELEY, RICHTER, and LANG-MIERS.
Opinion By Justice RICHTER.
A jury found appellant Jerry Don Calder guilty of securing by deception the execution of a power of attorney by Donald Poynter, an elderly individual, with the intent to defraud and harm the pecuniary interest of Poynter, valued at $20,000 or more, but less than $100,000. The trial court set punishment at ten years confinement, suspended the imposition of the sentence and placed appellant on five years of community supervision, and assessed a fine in the amount of $2,000. The trial court also ordered appellant to return Poynter's real property. In five issues, appellant challenges the factual and legal sufficiency of the evidence to support his conviction, the trial court's order that he return Poynter's real property, and venue. We affirm the trial court's judgment.
BACKGROUND
The indictment alleged that on January 14, 2008, appellant, with intent to defraud and harm Poynter, caused Poynter to sign and execute a power of attorney for appellant, which document affected Poynter's pecuniary interest valued at $20,000 or more, but less than $100,000. There is no dispute that Poynter signed a document giving appellant power of attorney. Nor is there a dispute that appellant, as agent for Poynter pursuant to the power of attorney, conveyed Poynter's interest in certain real property to appellant's mother, who immediately conveyed it to appellant. The parties dispute whether appellant used deception to persuade Poynter to sign the power of attorney, whether appellant had the intent to defraud and harm Poynter, and whether the value of Poynter's interest in the subject real property was $20,000 or more. Poynter was seventy years old at the time of trial. He is appellant's father and his first wife, Susann Bernier Calder, is appellant's mother. Not long after appellant was born, Poynter and Calder divorced and Poynter did not see appellant for approximately thirty years. One day appellant stopped by Poynter's house and from that point on, Poynter and appellant began to develop a relationship. Poynter has three other children from two later marriages. Poynter testified that he owns a one-seventh and one-sixth fee simple interest in two pieces of real property located in the Trinity River floodplain at 8500 Rylie Road in Dallas, Texas. The property has been in his family for generations and the remaining interests are owned by other family members. Poynter spoke with three of his four children, including appellant, about dividing the property taxes and the proceeds from any sale among them, as Poynter did not have the ability to pay the property taxes himself. Nancy York, a family member and part-owner of the property, handled payment of all taxes on the property. In August 2006, York contacted the various owners concerning a partition sale of the property. Poynter and other family members were reluctant to agree because the proposed terms of the sale seemed to provide that a disproportionate sum would be paid to York. Poynter discussed the proposed sale with appellant and appellant told Poynter he would handle it. Meanwhile, appellant began talking to Poynter about developing the property. He suggested they keep the property and proposed starting several different businesses utilizing the property. Poynter was not open to appellant's business proposals because he lacked the necessary capital. Poynter also reminded appellant that he only owned a fraction of the property so any attempt to start a business would necessitate buying the remaining interests. Appellant made several offers to purchase Poynter's interest in the property but Poynter was not interested in selling. In 2007, Poynter was contacted by attorneys representing York in the partition sale. Poynter attended a hearing but did not understand the proceedings. Poynter appeared without an attorney and although appellant accompanied Poynter, appellant was not allowed to speak on Poynter's behalf because he did not have power of attorney for Poynter. The court proceedings were postponed so Poynter could retain counsel. Poynter testified that in January 2008, appellant began urging him to sign a power of attorney so appellant could speak for him at the upcoming court hearing. On January 14, 2008, appellant and Poynter went to BC Tax Service in Edgewood, Texas, for the purpose of executing a power of attorney. Shirley Chase, proprietor and a notary public, testified that appellant had two versions of a power of attorney. The first version was a power of attorney that granted appellant power over all of Poynter's property, real and personal, while the second version was a power of attorney with respect to the real property at 8500 Rylie Road only. Chase testified that she asked Poynter if he knew what he was signing and he said no. After Chase explained the first power of attorney to him, Poynter stated it was not his intention to grant such a broad power of attorney. He told Chase and appellant that he only wanted to give appellant the power to speak on his behalf at the court hearing. Chase testified that appellant assured Poynter that the power of attorney was only so he could appear in court on Poynter's behalf and to save Poynter from having to make the trip from Edgewood to Dallas. Poynter then signed the second version of the power of attorney and Chase notarized it. The power of attorney gave appellant "full power and authority to do and perform any and all acts of any sort or kind whatsoever" pertaining to the real property at 8500 Rylie Road. The power of attorney was filed with the Dallas County Clerk on March 31, 2008. Poynter testified that in February 2008, appellant contacted him about child support that Poynter owed appellant's mother going back forty-four years. Appellant told Poynter that he owed so much back-due child support, he should just give the 8500 Rylie Road property to appellant. After this discussion, appellant gave Poynter an agreement that would convey the property to appellant and require Poynter to fund all maintenance and equipment expenses. Appellant told Poynter that he wanted Poynter to give him the property so they could go into business together. Poynter testified that he refused, telling appellant he could not give the property to him because Poynter's other children had helped pay the property taxes and deserved to have part of the property. On June 3, 2008, Poynter met with York's attorneys and executed a Rule 11 agreement to put the property into receivership for sale. Poynter called appellant to tell him about signing the agreement and testified that appellant got mad, cursed at him and hung up on him. The next day, appellant filed a notice of child support lien and two warranty deeds. The first deed, dated February 29, 2008, conveyed Poynter's interest in the property to Calder, appellant's mother, in consideration for $10.00. An attachment to the deed stated the transfer of property was made for the purpose of repayment of a debt and constituted a $50,000 partial repayment of forty-four years of back-due child support and interest totaling $147,081.24. The deed was executed by appellant as agent under power of attorney for Poynter. In the second deed, also dated February 29, 2008, Calder conveyed the property to appellant in consideration for $10.00 and $50,000 cash "paid in hand by Check #1500, drawn on Pegasus Credit Union, 1201 Elm St. #120, Dallas, Texas 75270," thereby establishing appellant as the record owner of the property. Appellant then filed an intervention suit to block the partition sale proceedings. The next day Poynter received the warranty deeds and notice of child support lien in the mail. On June 6, 2008, Poynter filed charges against appellant and shortly thereafter, revoked the power of attorney. Elisabeth Sarles, an employee of the Dallas Central Appraisal District (DCAD), testified that the 8500 Riley Road property consists of two tracts of land. She testified that according to DCAD records, one tract is valued at $66,950, and the other tract is valued at $58,650. Paul Elliott, the attorney for York in the partition suit, testified that appellant's conveyance of Poynter's interest in the property put a cloud on the title and brought the partition proceedings to a halt until such time as title was cleared. He testified that the value given to the property in the partition suit was $400,000. He also testified that Poynter owned approximately fourteen percent of one tract and twelve-and-one-half percent of the other tract. Susann Calder, appellant's mother, testified that she signed the warranty deed and notice of child support lien because her son wanted to use the documents as leverage against his father. She stated appellant wanted to keep the property in the family, did not want Poynter to sell it, and was looking forward to working this property with his father. She also testified that she did not receive $50,000 from appellant. The jury found appellant guilty as charged. Appellant filed a motion for new trial, which was denied by the trial court. Appellant timely filed his notice of appeal. DISCUSSION
Appellant raises five issues on appeal. In his first three issues, appellant challenges the factual and legal sufficiency of the evidence to prove: (1) that appellant used deception to cause Poynter to sign and execute the power of attorney; (2) that appellant intended to defraud and harm Poynter; and (3) that Poynter's pecuniary interest had a value of $20,000 or more but less than $100,000. In his fourth issue, appellant argues the trial court erred in requiring him to transfer the subject real property back to his father. In his fifth issue, raised for the first time on appeal, Appellant contends that venue is not proper in Dallas County. A. Sufficiency of the Evidence
The Texas Court of Criminal Appeals has overruled Clewis v. State, holding that the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.). This standard requires the reviewing court to determine whether, considering all of the evidence in the light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a reasonable doubt. Id. at 899 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Id. Under Texas law, a person commits the offense of securing execution of a document by deception if, with intent to defraud or harm any person, he, by deception, causes another to sign or execute any document affecting the pecuniary interest of any person. Tex. Penal Code Ann. § 32.46(a)(1) (West 2011). "A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result." Tex. Penal Code Ann. § 6.03(a) (West 2011). Intent to deceive can be inferred from acts, words, and conduct of the accused. See Goldstein v. State, 803 S.W.2d 777, 791 (Tex. App.-Dallas 1991, pet. ref'd). A person engages in deception by "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." Tex. Penal Code Ann. § 31.01(1)(A) (West 2011). Appellant contends the evidence is insufficient to prove he used deception to cause Poynter to sign and execute the power of attorney. We do not agree. It is clear from the record that appellant had been trying to talk Poynter into giving or selling him the property for several years. Appellant prepared the power of attorney documents and tried to persuade Poynter to sign the version granting broad power over all of Poynter's real and personal property. Chase testified that when she explained the broad power of attorney to Poynter, he told her that was not his intent. Appellant then provided a power of attorney that was limited to the Dallas property. Chase testified that Appellant urged Poynter to sign the power of attorney so he could speak for Poynter at the court hearing. Chase testified that appellant told her and Poynter "[t]hat's all it's for. It's not for any other properties, it's not selling, it's not taking away that responsibility. It's only to not make my dad have to drive back and forth." However, the scope of the power of attorney signed by Poynter was inconsistent with appellant's assurances. Appellant's subsequent actions in using the power of attorney were also inconsistent with his assurances to Poynter. Incredibly, appellant argues that his actions accomplished exactly what Poynter wanted-for appellant to represent and speak for Poynter in the partition lawsuit. He further claims the reason he deeded the property to his mother and then back to himself was to be able to intervene in the partition lawsuit to prevent the sale of the property. Finally, appellant contends that his conveyance of the property to Calder resulted in real and valuable consideration to Poynter, the repayment of $50,000 in back child support. However, Calder testified that she never received a payment of $50,000. Poynter testified that but for appellant's assurances that the document was only to allow him to speak in court, he would not have signed the power of attorney. Poynter also testified he believed appellant deceived him into signing the power of attorney so he could steal Poynter's property. The victim's testimony that he would not have executed the document but for the accused's conduct is sufficient to establish the element of deception. See Goldstein, 803 S.W.2d at 791. Based on the record, the jury could have rationally concluded that appellant deceived Poynter by creating and confirming, through his acts, words and conduct, a false impression that the power of attorney would be used only to allow him to speak on Poynter's behalf in the partition proceedings. See Tex. Penal Code Ann. §§ 31.01(1)(A), 32.46(a)(1). Appellant also argues the evidence is insufficient to show that Poynter's pecuniary interest had a value of $20,000 or more but less than $100,000. Section 32.46 of the Texas Penal Code does not define the term "pecuniary interest." See Tex. Penal Code Ann. § 32.46(a)(1). Thus the term is to be given its plain and ordinary meaning. See Goldstein, 803 S.W.2d at 791. In support of his argument, appellant points to the fact that Poynter has no "financial stake" in the property because it was deeded to Poynter by a family member without payment. We are not persuaded by appellant's contention. The record makes clear that Poynter had a vested interest in the property and expected to profit from the partition sale. Sarles testified at trial that DCAD listed one tract at $66,950, and the other tract at $58,650. In light of Poynter's testimony that he owns a one-seventh interest in one tract and a one-sixth interest in the other tract, appellant calculates the total estimated value of Poynter's interest to be $16,895. Appellant points out that the partition lawsuit was stopped so the actual market value of the property was not determined through a receivership. However, we are mindful that appellant's actions clouded title to the property, thus halting the partition proceedings. The warranty deeds drafted by appellant suggest that he was willing to pay $50,000 in consideration for the property. According to the record, the jury heard testimony from Elliott, the real estate attorney representing York in the partition lawsuit. Elliott testified that the property had not been appraised but he estimated the total fair market value to be $400,000. Elliott also testified that Poynter had a twelve-and-one-half percent interest in one tract and a fourteen percent interest in the other. 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). The jury was entitled to believe any portion of Poynter's testimony, including his statement that he was deceived into signing the power of attorney. Further, the jury was entitled to believe any portion of Sarles' and Elliott's testimony as to the value of the real property and Poynter's interest therein. 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 securing by deception the execution of a power of attorney by Poynter, an elderly individual, with the intent to defraud and harm the pecuniary interest of Poynter, valued at $20,000 or more, but less than $100,000. See Brooks, 323 S.W.3d at 895, 899. Appellant's first, second and third issues are overruled. B. Restitution
As a condition of community supervision, the trial court ordered: "Defendant shall as restitution return the property in this case to his father within 120 days from this date." In his fourth issue, Appellant challenges the trial court's restitution order on the basis that article 42.037 of the Texas Code of Criminal Procedure prohibits the trial court from ordering restitution for a loss for which the complainant has received compensation. Tex. Code Crim. Proc. Ann. art. 42.037(f)(1) (West Supp. 2010). Appellant claims Poynter's compensation for the loss of his property is the alleged $50,000 partial payment of the child support lien. We review a trial court's order of restitution under an abuse of discretion standard. See Garza v. State, 841 S.W.2d 19, 23 (Tex. App.-Dallas 1992, no pet.) (citing Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980)). A trial court abuses its discretion when it acts without reference to any guiding rules or principles or acts arbitrarily or unreasonably, or when its decision is so clearly wrong that it lies outside the zone of reasonable disagreement. See McBryer v. State, No. 05-08-01055-CR, 2010 WL 1818056, at *1 (Tex. App.-Dallas May 3, 2010, no pet.) (mem. op., not designated for publication) (citing Gonzalez v. State, 117 S.W.3d 831, 839 (Tex. Crim. App. 2003); Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). Under Texas law, a trial court, in sentencing a defendant, may order the defendant to make restitution to any victim of the offense. Tex. Code Crim. Proc. Ann. art. 42.037(a). The trial court has a great deal of latitude in imposing restitution and is only limited by three restrictions: (1) the amount must be just and must be supported by a factual basis within the loss suffered by the victim; (2) the restitution ordered must be for an injury resulting from the offense charged; and (3) restitution is proper only for the victim of the offense with which the offender is charged. See Cabla v. State, 6 S.W.3d 543, 546 (Tex. Crim. App. 1999); see also Ceballos v. State, 246 S.W.3d 369, 373 (Tex. App.-Austin 2008, pet. ref'd); Garza, 841 S.W.2d at 23. In cases involving the loss of property, the court may order the property be returned to the victim. Tex. Code Crim. Proc. Ann. art. 42.037(b)(1)(A). If return of the property is impossible, impractical, or an inadequate remedy, then monetary restitution may be ordered. Id. at 42.037(b)(1)(B). To preserve error concerning the appropriateness of a restitution order, appellant was required to make a specific and timely objection. Tex. R. App. P. 33.1(a)(1)(A); see Idowu v. State, 73 S.W.3d 918, 921 (Tex. Crim. App. 2002). There is no evidence in the record that appellant objected on this basis to the trial court's order of restitution, either when restitution was imposed or in his motion for new trial. Because appellant challenges the appropriateness of the restitution order, and the record establishes that he failed to object to the restitution order at trial, appellant waived his complaint. See Idowu, 73 S.W.3d at 921; see also Lemos v. State, 27 S.W.3d 42, 47 (Tex. App.-San Antonio 2000, pet. ref'd) (concluding that because appellant did not object to trial court's restitution award to victim's wife at trial, he waived his complaint.). We conclude appellant's restitution issue is not preserved for appeal. See Tex. R. App. P. 33.1(a)(1)(A); see also Riggs v. State, No. 05-05-01689-CR, 2007 WL 969586, at *4 (Tex. App.-Dallas April 3, 2007, no pet.) (not designated for publication). Appellant's fourth issue is overruled. C. Venue
The day before this case was submitted for oral argument to this Court, appellant filed a motion raising a venue issue for the first time. This Court denied appellant's motion to postpone oral argument, allowed appellant's supplemental brief to be filed, and granted the State time within which to file a response. Appellant argues the record affirmatively shows that venue was proper in Van Zandt County; therefore, prosecuting the case in Dallas County was error and caused him substantial harm. Because the power of attorney was signed, executed and notarized in Van Zandt County, Texas, appellant argues that proper prosecution of this case can only take place in Van Zandt County, the county in which the offense was committed. See Tex. Code Crim. Proc. Ann. art. 13.18 (West 2005). The State filed its response, asserting venue is proper in Dallas County, Texas, because conduct constituting the offense also occurred in Dallas County. The State notes that all parties to the offense, except for Poynter, reside in Dallas County. The State contends that the record establishes that the power of attorney, the child support lien, and the two deeds, all of which the State claims were utilized by appellant to defraud Poynter of his Dallas property, were filed with the County Clerk in Dallas County. Appellant further argues that prosecution in Dallas County resulted in substantial harm, requiring reversal, on the grounds that "political interest with the Trinity River development may have had a significant impact on the jury's verdict." However, appellant provides no support for his allegation of harm. If venue is not made an issue at trial, the court of appeals must presume that venue was proper unless the record affirmatively shows to the contrary. Tex. R. App. P. 44.2(c). The offense of securing the execution of a document by deception is not specifically addressed in the venue statutes. When there is no special venue statute applicable to the charged offense, the proper venue for prosecution is the county in which the offense was committed. Tex. Code Crim. Proc. Ann. art. 13.18. However, where conduct constituting a single offense is committed in more than one county, venue pursuant to the general venue statute is proper in any of those counties. See State v. Weaver, 982 S.W.2d 892, 893 (Tex. Crim. App. 1998); see also Schemm v. State, 228 S.W.3d 844, 846 (Tex. App.-Austin 2007, pet. ref'd). Here, appellant acknowledges venue was not made an issue at trial. Therefore, appellant must establish that the record affirmatively shows that venue was not proper in Dallas County. See Tex. R. App. P. 44.2(c). The record reflects that while the actual execution of the power of attorney occurred in Van Zandt County, the harm to Poynter's pecuniary interest occurred when appellant filed the power of attorney, the child support lien, and the two deeds in Dallas County. We conclude that conduct constituting the single offense of securing by deception the execution of a power of attorney by Poynter with the intent to defraud and harm his pecuniary interest was committed in Van Zandt County and Dallas County. Therefore, venue is proper in either county. Appellant's fifth issue is overruled. CONCLUSION
Having overruled all of appellant's issues, we affirm the judgment of the trial court.