Opinion
No. 05-10-00049-CR
Opinion issued June 8, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 219th Judicial District Court, Collin County, Texas, Trial Court Cause No. 219-80413-09.
Before Justices MORRIS, BRIDGES, and FRANCIS.
OPINION
Dean Elliott appeals his conviction for theft of property valued at $200,000 or more. After the jury found him guilty, the trial court assessed punishment at eleven years in prison. In two issues, appellant claims the trial court erred by not granting a mistrial and that the evidence is insufficient to support his conviction. We affirm the trial court's judgment. Appellant owned an oil and gas company that operated under various names, including Tex-Am, Fairfield, and E Corp 2001. The company drilled and operated oil and gas wells and leases. Appellant sought people to invest money in the company. When an investor bought a percentage interest in an oil and gas lease, he was told he would receive a guaranteed minimum monthly payment until the original investment was repaid in full. Thereafter, the investor would share in any profits generated by the lease. After a former investor filed a lawsuit and had appellant removed from E Corp, appellant could no longer raise money and could not pay the minimum payments to existing investors. Following an investigation into the alleged "Ponzi" scheme, appellant was charged with theft by deception of the investors' funds. In his first issue, appellant claims the trial court erred by denying his motion for mistrial, or alternatively, by refusing to seat the alternate juror when it was discovered a sitting juror knew one of the victims/witnesses. We review a trial court's denial of a motion for mistrial under an abuse of discretion standard. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010). We uphold the trial court's ruling if it was within the zone of reasonable disagreement. Id. The State and the defendant have the right "to question the jury to expose any interest or partiality in order to use peremptory strikes intelligently." Franklin v. State, 12 S.W.3d 473, 477 (Tex. Crim. App. 2000). When a juror withholds material information, the use of challenges and peremptory strikes is hampered. Id. To obtain a reversal on an allegation that a juror withheld information in voir dire, the defendant must show material information was withheld despite due diligence exercised by the defendant who acted in good faith on the answers given by a juror in voir dire. Decker v. State, 717 S.W.2d 906, 907 (Tex. Crim. App. 1983) (op. on reh'g). That a juror knows a person involved in the case does not automatically establish a partial jury or require a mistrial. See id. During voir dire, appellant asked if any of the venire members knew any of the victims, including Nan White. No one responded affirmatively. On the second day of trial, one of the district attorneys informed the trial court that White, both a victim and a witness in the case, told him she knew Star Sims, one of the jurors. After hearing this information, appellant stated he did not believe he could get a fair and impartial trial and asked the court to either "scrap the jury and start over" or "excuse her from the jury and proceed with the alternate." In response, the State asked to be allowed to question Sims about her relationship with White. According to Sims, White was "very good friends" with Sims's best friend but Sims only knew her enough to say "hello" and "how are you?" when she saw her. Sims did not know anything about White's financial situation, had not met White's husband or children, and did not "know her personally that well." Sims had been around White socially about five times, most recently at a happy hour three weeks before trial. Sims did not know White's last name and therefore did not make the connection when asked during voir dire if she knew White. The evening after the first day of trial, Sims spoke with her best friend who mentioned she had planned to do something with White the following day but could not because White had to be in court. Sims "started putting it together" and asked her best friend for White's last name. Sims stated that knowing White would not affect her judgment. When appellant asked how she could be sure it would not, she conceded it might be a possibility because it could be in her "subconscious." After she left the courtroom, appellant again argued Sims could not be fair and impartial because she said knowing White could "possibly affect her dealings, subconsciously affect how she decides the case." The State disagreed, stating Sims said she could still be fair and impartial. The trial court denied appellant's requests, and the trial continued. Although appellant argues "jury misconduct was apparent" in his trial, the record shows Sims did not intentionally withhold information or give false information during voir dire. Rather, she responded to appellant's questions with the information she had at the time. After it became apparent Sims knew White, appellant had the opportunity to question Sims about the extent of her relationship with White. The record shows Sims's acquaintance with the complaining witness was only minimal, having met or socialized with her five times during her lifetime. Sims did not know White's last name, had not met her family, and did not know anything about White's financial situation or the facts of this case. The record does not show the relationship had any potential for prejudice or bias or that Sims could not be fair and impartial. See Decker, 717 S.W.2d at 907-08. In light of this, we cannot conclude the trial court abused its discretion by denying appellant's motion for mistrial. Appellant alternatively argues the trial court erred by denying his request to seat an alternate juror. Under this complaint, however, appellant cites no authority nor does he present any analysis in support of his contention. We conclude he has failed to adequately brief this portion of his argument. See Tex. R. App. P. 38.1(i). We overrule appellant's first issue. In his second issue, appellant claims the evidence is legally and factually insufficient to support his conviction. Specifically, appellant claims the evidence at trial failed to show appellant intended to deprive the alleged victims of their property by deception. In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). We defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326. A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property. Tex. Penal Code Ann. § 31.03(a) (West 2011). Appropriation of property is unlawful if it is without the owner's consent. Id. § 31.03(b)(1). The indictment and jury charge alleged appellant unlawfully appropriated over $200,000 from Richard Holmes, J. L. White, Nan White, James E. Irwin, Mary Ellen Irwin, and Robert C.E. Williams, the owners of the money, and the appropriations were without effective consent in that consent was induced by deception. The indictment and the jury charge defined deception as appellant (1) creating or confirming by words or conduct a false impression of fact that was likely to affect the judgment of the owners in the transaction and that appellant did not believe to be true; (2) failing to correct a false impression of fact that was likely to affect the judgment of the owners in the transaction, that appellant previously created or confirmed by words or conduct, and appellant did not at the time believe to be true; and (3) promising performance that was likely to affect the judgment of the owners in the transaction and appellant did not intend to perform or knew would not be performed. See id. § 31.01(1)(A), (B), (E). At trial, several investors testified. Holmes heard about E Corp from a friend, Steve Endicott. He also met and spoke several times with Bert Maxwell who appeared to be "clearly very involved" with E Corp. Holmes met appellant once. During that conversation, appellant described the success E Corp was having with its oil and gas leases. Holmes identified the $19,000 check he wrote to E Corp for his investment in an oil and gas lease know as the Walker-Buckler lease. Appellant deposited the funds into his personal checking account. Holmes received a subscription agreement detailing his purchase of 5% interest in the lease. The agreement guaranteed Holmes the return of his principal investment over a thirty-month period at $633 per month. If the oil and gas lease revenues were less than $633, E Corp guaranteed it would pay the difference. The subscription agreement stated the $19,000 would pay for "the Acquisition Costs, which covers all costs including drilling and completion of the 3 new oil wells and 1 water injection well described in the Prospectus." It also stated Holmes would not be required to pay additional funds if cost overruns were experienced. When Holmes asked how they could guarantee the return of his investment, Maxwell and appellant told him they acquired other production at discounted prices and had enough output from the other production to make the guaranteed payments. Neither appellant nor Maxwell told Holmes that payments to other investors would be made using new investors' investment funds. If he had known, Homes would not have invested with E Corp. Holmes also stated he would not have invested with E Corp if he had known (1) his investment check would be deposited in appellant's personal checking account and would be used to pay other investors' guaranteed monthly revenue checks, (2) appellant had been sued by prior investors for contractual violations and had outstanding judgments against him, (3) the Texas Railroad Commission had sued appellant and obtained a $40,000 judgment against him, and (4) appellant had lost his ability to operate oil and gas leases. Nan and Jeff White met appellant who told them he had a lot of experience in oil and gas leasing and that he had been extremely successful. The Whites were investing for their children's college education so it mattered to them that appellant had been successful and the returns were guaranteed. The Whites invested in the JP Morris lease and were told they got the last three units. They later found out that the Irwins, who invested with E Corp after they did, also got JP Morris lease units. The Whites were to receive $900 a month for 36 months for each unit they purchased. They got their first payment "pretty much right away." After receiving about four payments, they did not receive any more. When Jeff contacted appellant about the lack of payments, he was told they were reworking the wells. Like Holmes, the Whites did not know previous investors with E Corp had been paid their revenue checks with new investors' investment funds or that previous judgments were paid with investor funds. Nor did they know about the Texas Railroad Commission lawsuit and the $40,000 judgment or that appellant had lost his ability to operate oil and gas leases. Furthermore, appellant represented the funds invested in the JP Morris lease would be deposited in a separate account when, in fact, the funds were commingled with all investments made in and by E Corp. If the Whites had known any of these facts, they would not have invested $97,200 with E Corp. In August 2004, James Irwin invested $16,200 in E Corp as did his mother, Mary Irwin. Although Irwin did not meet appellant, he met Maxwell who represented he was a vice-president of E Corp and that appellant had been successful in the oil and gas industry. Irwin got a prospectus, signed by appellant, on the JP Morris lease. According to both Maxwell and the signed prospectus, the JP Morris had fourteen wells producing about twenty to twenty-two barrels of oil a day. In addition, they represented E Corp was going to drill six new wells and flood existing wells, with a goal of getting production to 140 barrels of oil a day. Irwin bought a 1% working interest for himself and for his mother. He received his subscription agreement, signed by appellant, which stated the $16,200 investment would pay for acquisition costs as well as drilling and completion of six new wells. The agreement provided a guaranteed return of $540 a month over a thirty-month period and stated if revenues were less than $540 a month by the time all wells were completed, then E Corp and PRL Oil Company, another of appellant's companies, would pay the difference under the guarantee. The agreement did not state those guaranteed payments would be funded by other investors' funds. Irwin received two checks for $540 and, after November 2004, received no more payments or funds. Although he still held the investment, he had not been contacted about it for many years. Irwin did not expect his investment dollars to pay previous investors their guaranteed returns nor did he expect his funds to be commingled with other funds. It was his understanding his funds would be kept separate, and he would not have invested or allowed his mother to invest with E Corp if he had known they would be placed with other funds. Irwin was not told about appellant's prior lawsuits, the judgments against him, or that prior lawsuits had been paid using investor funds. These were all facts Irwin would have liked to have known before making the decision to invest and, if he had known, he would not have invested or allowed his mother to invest with appellant. Williams met Lawrence Briggs who asked him to consider investing in appellant's venture. Although he did not meet appellant personally, Williams relied on the prospectus, signed by appellant, as well as representations that appellant was experienced and had been successful in the past. After being told drilling for the JP Morris was "ongoing, successful, and producing," Williams invested $259,200. He was not aware his payments would go to pay previous investors their guaranteed monthly returns and would not have invested had he known appellant was operating "a Ponzi scheme." Williams was assured this investment was a separate venture and was not aware appellant had other such ventures. Like the others, he was not aware of appellant's other legal problems. Williams described these as material facts which would have prevented him from investing. His repeated attempts to contact appellant were unsuccessful. He did not receive any repayment from appellant. Christine Renfro was appellant's part-time bookkeeper from 2000 to 2003. E Corp did not bring in a lot of non-investment money, only three to six thousand dollars a month. The bulk of the income was from investors making investments. Renfro wrote whatever checks appellant told her to write and stated appellant always knew what the balances in the accounts were. According to Renfro, to make the minimum monthly payments to existing investors, appellant had to continually get new investors. Renfro confirmed there were no separate accounts for separate wells or leases and stated if an investor invested in one lease, the money invested would be spent on "whatever had to be paid." Many of the bills dealt with appellant's personal expenses including his credit cards, vacations, cars, and living expenses. If a particular account did not have enough money to pay a particular bill, appellant instructed Renfro to hold the check until the check could be covered. Often they would backdate the check or postage meter to make it appear that the check had been timely sent. Renfro balanced the accounts which was often difficult because there were a lot of overdrafts on the accounts. When a company got too much debt and the bank account was "so overdrawn" that the company "was no longer viable," appellant would "blow up" the company and start a new one with a different name. He did not have personal liability on the accounts. Renfro kept spreadsheets with each investor's investment and the percentage the investor owned in a particular well or lease. At one point, she realized that more interest had been sold in a lease than what E Corp actually owned. When she told appellant, he instructed her to "[t]ake out a couple of investors' names and their percentages" so it would not look like it had been oversold. Rani Sabban, a financial examiner for the enforcement division of the Texas State Securities Board, examined five bank accounts. Three accounts were at Colonial Bank-one in appellant's name, one in the name of E Corp, and the last in the name of PRL. Appellant was the only authorized signatory on all three Colonial accounts. Two other accounts were at BankOne-one in the name of PRL with appellant as the authorized signatory (PRL 1) and the other in the name of PRL with Joe Putnam and John Frost as authorized signatories (PRL 2). Sabban analyzed the account activity around the dates of the investments made by Holmes, the Irwins, the Whites, and Williams. In late December 2003, appellant deposited Holmes's $19,000 check into his personal Colonial account. Within a ten-day period after the deposit, appellant took nearly $15,000 in cash from this account, and paid his office manager $10,000 and personal expenses of $2,262. No payments were made on any oil and gas related expenses. In late July 2004, appellant deposited two checks from the Whites along with the check of another investor into the E Corp Colonial account for a total of $97,200. From this amount, he paid $2000 in oil and gas expenses, $27,177 to prior investors, and $5,600 on automotive expenses. After transferring $47,000 to the PRL 1 BankOne account, he paid $47,473 from that account to prior investors. On August 4, 2004, appellant deposited the last $32,400 check from the Whites into the E Corp Colonial account. This was used over the following six days to cover an overdraft of $9,475 as well as to pay $7,640 in commissions to Maxwell and Endicott, and transfer $15,750 to the PRL 1 BankOne account. Approximately $16,725 was then paid from the PRL 1 BankOne account to prior investors. The Irwins' checks were deposited into E Corp's Colonial account. These funds were used to pay prior investors, oil and gas expenses on the Treadwell lease, car leases, travel expenses, commissions, and to repay the PRL 2 BankOne account for $18,000 in funds mistakenly taken to cover an $18,000 overdraft on the PRL 1 BankOne account. Williams's check for $259,200 was deposited into the PRL Colonial account along with $97,200 of other investors' funds. Appellant paid $143,000 to prior investors and over $42,000 in commissions to Endicott, Maxwell, and others. After transferring $125,000 to the E Corp Colonial account, he paid nearly $53,000 to other investors along with payments of nearly $40,000 in household, insurance, car leases, travel, and credit card expenses. Summarizing the activity on the four accounts with appellant as the sole signatory, Sabban noted appellant deposited $5,487,586 in investors' funds and paid only $837,000 for oil and gas expenses. In addition, appellant paid $2,400,797 to investors. Viewing the evidence in the light most favorable to the judgment, the evidence shows appellant represented himself as a successful oil and gas man. Investors were told the amount they invested would go toward acquisition costs and to cover all costs associated with the drilling and completion of wells and, in most cases, were guaranteed full repayment of the investment within a thirty or thirty-six month period. Investors were also told their funds would be kept in separate accounts and not commingled with other investments. Contrary to his representations, the evidence shows appellant commingled the investments and did not keep the investors' funds separate, used the investments to pay prior investors, and did not repay Holmes, Williams, the Whites, or the Irwins. In addition, appellant had been sued by prior investors as well as the Texas Railroad Commission and could not legally operate oil and gas leases. The victims testified that, had they known these facts, they would not have invested money with E Corp. From these facts, we conclude a rational jury could infer appellant unlawfully appropriated the investment funds by deception from the owners by: creating or confirming by words or conduct false impressions of fact that were likely to affect the judgment of the owners in the transaction and that appellant did not believe to be true; failing to correct a false impression of fact that was likely to affect the judgment of the owners in the transaction, that appellant previously created or confirmed by words or conduct, and appellant did not at the time believe to be true; or promising performance that was likely to affect the judgment of the owners in the transaction and appellant did not intend to perform or knew would not be performed. We conclude the evidence is legally sufficient to support appellant's conviction for theft. We overrule appellant's second issue. We affirm the trial court's judgment.