Opinion
No. 04-02-00107-CR.
Delivered and Filed: August 29, 2003. DO NOT PUBLISH.
Appeal From the 175th Judicial District Court, Bexar County, Texas, Trial Court No. 2001-CR-4440, Honorable Mary Roman, Judge Presiding. Affirmed.
Sitting: ALMA L. LOPEZ, Chief Justice, CATHERINE STONE, Justice, PAUL W. GREEN, Justice.
MEMORANDUM OPINION
Appellant Chad Edward English was convicted of misapplication of fiduciary property in the amount of $100,000 to $200,000. He was sentenced to ten years' imprisonment and ordered to pay restitution in the amount of $191,000. He now appeals, citing thirteen issues. 1. In his first issue, English argues the trial court abused its discretion in allowing testimony from witnesses who had violated "the Rule." Under Texas Rule of Evidence 614, commonly referred to as "the Rule," at the request of a party, the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses. Tex.R.Evid. 614. We review a trial court's decision to allow testimony from a witness who has violated the Rule under an abuse of discretion standard. Bell v. State, 938 S.W.2d 35, 50 (Tex.Crim.App. 1996). Until the contrary is shown, we presume the trial court properly exercised its discretion. Id. In reviewing the trial court's decision to allow the testimony, we look at whether or not the defendant was harmed or prejudiced by the witness' violation; that is, whether or not the witness' presence during other testimony resulted in injury to the defendant. When determining whether the trial court abused its discretion we look at (1) whether the witness actually heard another witness' testimony or conferred with another witness, and (2) whether the witness' testimony corroborates the testimony of another witness he actually heard from the same side on an issue of fact bearing upon the issue of guilt or innocence. Cooks v. State, 844 S.W.2d 697, 733 (Tex.Crim.App. 1992). English alleges two separate violations of the Rule. First, he complains that his defense counsel saw two witnesses perusing documents pertinent to his case together. The second instance of an alleged violation involved two witnesses, Edgar Nieto and Lupe Renteria. The prosecutor, James Ishimoto, informed the court that, in the course of reviewing Renteria's testimony with him, he had asked Nieto to interpret. Because there is no dispute as to whether these witnesses actually conferred with each other, we must determine only whether the testimony of the witnesses who violated the Rule corroborates other witnesses' testimony regarding an issue of fact bearing on the guilt or innocence of English and whether this harmed him. In the first instance, witness James Brousseau admitted that he had been looking at and discussing documents, specifically odometer statements, with witness Edgar Nieto. Two other witnesses were present in the same room. Brousseau testified that he did not speak with the other two witnesses and that, as far as he knew, the other three witnesses involved did not discuss the case in his presence. There was no discussion as to any of the specific vehicles involved in the case, and Brousseau testified he was sure he had not discussed the case with anyone. The judge remedied the breach by disallowing any testimony from the witnesses involved regarding odometers and where specific copies of the odometer statements were to go, the only topics discussed. Because the court limited the testimony of these witnesses and because they were not shown to have changed their testimony as a result of their discussion, the trial court did not abuse its discretion in allowing them to testify as to other matters. In the second instance, the prosecutor, James Ishimoto, asked witness Edgar Nieto to interpret for his uncle, witness Lupe Renteria, while Ishimoto was reviewing Renteria's testimony with him because Renteria does not speak English very well. English's defense counsel then questioned Renteria regarding his discussion with the prosecutor. Renteria testified that he had discussed car receipts, odometer readings, whether he had paid English, and the dates of any payments. Although Nieto interpreted for his uncle, Renteria stated that they did not discuss the case; Nieto merely interpreted exactly what was said to Ishimoto. In addition, there was no talk of specific car models or of the amounts paid. Following a hearing, the trial court denied English's request to have the testimony of Renteria and Nieto stricken. At trial, Renteria changed his testimony from an earlier statement he had given to a police detective, stating that he, instead of his nephew, had furnished his own money for the cars he purchased. Nieto also altered his testimony to corroborate that of Renteria, stating that he had never purchased a vehicle from English. This statement is in direct conflict with an earlier statement he had given to the police. Although Renteria's change in testimony does not conform with another witness' testimony, Nieto's alteration does. Nieto's testimony also appears to directly address a matter affecting English's innocence or guilt, thereby seemingly meeting the second prong of the abuse of discretion test. However, the matter testified to by Nieto, although indirectly pertinent to English's guilt or innocence, did not weigh against him. At trial, Nieto changed his testimony to say he did not purchase a car from English. Because it was English's behavior during and subsequent to any sales for which he was on trial, if Nieto did not purchase a car from English, then the change in testimony did not directly affect the issue of guilt or innocence. The trial court, then, did not abuse its discretion in allowing these witnesses to testify. We overrule English's first issue. 2. In his second, third, and fourth issues, English contends the trial court erred in failing to grant his motion to quash his indictment. First, English complains that the charging instrument fails to allege an offense as to Count I. Second, he avers that the charging instrument fails to state the manner and means by which he allegedly committed the offense as charged in Count I. Finally, English contends the indictment fails to describe the acts which constitute recklessness as alleged in Count I. English was charged under section 32.45 of the Texas Penal Code. In order to properly indict an accused for a criminal violation of section 32.45 it is necessary to plead every essential element of the offense. Bynum v. State, 767 S.W.2d 769, 778 (Tex.Crim.App. 1989). An indictment for the misapplication of fiduciary property must allege that (1) a person (2) intentionally, knowingly, or recklessly (3) misapplies (4) property he holds as a fiduciary or property of a financial institution (5) in a manner that involves substantial risk of loss (6) to the owner of the property or to a person for whose benefit the property is being held. Tex. Penal Code Ann. § 32.45(b)(Vernon Supp. 2003); Id. As a general rule, an indictment which tracks the language of the statute is legally sufficient. Bynum, 767 S.W.2d at 778. The indictment against English reads as follows:
Count I: . . . CHAD ENGLISH, hereinafter referred to as Defendant, did intentionally, knowingly, and recklessly misapply property, namely: LAWFUL CURRENCY OF THE UNITED STATES OF AMERICA AND FIFTY-SIX (56) MOTOR VEHICLES, which had AN AGGREGATE VALUE OF ONE HUNDRED THOUSAND DOLLARS ($100,000) OR MORE BUT LESS THAN TWO HUNDRED THOUSAND DOLLARS ($200,000), which Defendant held as a fiduciary . . . in a manner that involved a substantial risk of loss to the owner, by Defendant dealing with said property contrary to an agreement under which Defendant held said property, to wit: BY FAILING TO ENSURE THAT MOTOR VEHICLES WERE PROPERLY ACCOUNTED FOR AND BY FAILING TO ENSURE THAT MOTOR VEHICLES WERE KEPT AT ROD EAST VOLKSWAGEN AND SOLD FOR A REASONABLE PRICE WITH THE PROCEEDS OF MOTOR VEHICLE SALES FORWARDED TO ROD EAST VOLKSWAGEN, and all amounts of said property were misapplied as alleged . . .Because the indictment alleges all of the required elements of Penal Code section 32.45, tracking the language of the statute, it sufficiently alleges an offense against English. See Tex. Penal Code Ann. § 32.45(b)(Vernon Supp. 2003). We overrule English's second issue. In addition, a defendant who does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, waives the right to object to the defect, error, or irregularity and may not raise the objection on appeal. Tex. Code Crim. Proc. Ann. art. 1.14(b)(Vernon 2003); see also State v. Murk, 815 S.W.2d 556, 557 (Tex.Crim.App. 1991). In his pretrial motion to quash, English did not complain of either the indictment's failure to specify the manner and means by which the offense was committed or its failure to specify the acts which constitute recklessness. He has, therefore, waived his right to appeal these issues. English's third and fourth issues are overruled. 3. English's fifth issue asserts the trial court erred in allowing hearsay testimony over his timely objections. Specifically, English objects to three different instances of hearsay: (a) the testimony of Rod East Volkswagen sales manager Tim Kiselis, describing what he had been told by representatives of varying motor sales companies; (b) the testimony of Kiselis regarding a conversation with wholesale buyer Lupe Renteria; and (c) the testimony of Karen Steinbring regarding a list prepared by Lupe Renteria of which she had no personal knowledge. Initially, we note that, in his brief, English complains he was denied his Sixth Amendment right to confront and cross-examine the individuals with pertinent information because the trial court allowed the aforementioned witnesses to testify to hearsay. We find, however, that English has waived any Sixth Amendment violation by failing to object to such violation at trial. Tex.R.App.P. 33.1(a). We now address English's complaint regarding the admission of the alleged hearsay testimony. Hearsay is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. Tex.R.Evid. 801(d). Hearsay is inadmissible unless expressly excepted or excluded from the general rule by statute or the rules of evidence. Tex.R.Evid. 802. English first complains about the testimony of Tim Kiselis. On direct examination, the prosecutor asked Kiselis which car dealers he called in his search for the cars which were the subject of the prosecution. Kiselis named three car dealerships. The prosecutor then asked if Kiselis had been able to track down the cars. English objected to this question, citing hearsay. The court overruled the objection. The same objection was made again a few moments later. The court again overruled the objection. In this instance, the prosecutor's questions did not elicit answers which meet the definition of hearsay. The trial court did not, therefore, err in admitting Kiselis' answer. English also complains about Kiselis' description of an encounter he had with Lupe Renteria, the buyer for two auto dealerships. Kiselis said he discussed all the cars with Renteria through an interpreter. English objected to double hearsay, and the trial court overruled him. As with his earlier line of questioning, the prosecutor asked whether Kiselis' discussion with Renteria led him to tracking down more of the missing vehicles. English objected again, and the trial court overruled him once more. Here, again, the testimony elicited by the prosecutor was not a statement made by someone other than the declarant offered in evidence to prove the truth of the matter asserted. Finally, English objects to the statements of Karen Steinbring. Steinbring testified regarding car inventory lists. English objected to her referring to a list compiled by Lupe Renteria in order to testify as to where many of the allegedly stolen cars were found as hearsay. The court overruled his objection but conceded to grant a running objection regarding these references. Although English timely objected to Steinbring's testimony regarding the list, pertinent information regarding the missing cars enumerated on the list was admitted into evidence without objection. Utilizing this information, the jury could have interpreted Steinbring's testimony to weigh against English even without knowing each car ended up in the possession of Lupe Renteria. Thus, even if the testimony regarding the location of the missing vehicles was wrongfully admitted, English was not harmed by the admission of Steinbring's testimony. We overrule English's fifth issue. 4. In his sixth issue, English contends the trial court erred in admitting business records under a hearsay exception when a proper predicate was not laid. The trial court admitted business records, State's exhibits 1-56, which were made during the course of business at Rod East Volkswagen. English objected because there were several notations made on the records which were not part of the records themselves but were, instead, made during the search for the missing vehicles. During a hearing, the trial court ruled the records to be admissible provided that all attorneys involved peruse the records and omit any extraneous notation. Again, we note that English's brief contains a Sixth Amendment constitutional argument against the admission of the records. As in his fifth issue, any constitutional complaint is waived on appeal because English failed to timely object to a constitutional violation at trial. Tex.R.App.P. 33.1(a). As stated above, hearsay is inadmissible except where provided by statute or the rules of evidence. Tex.R.Evid. 802. Records kept within the normal course of business are not excluded by the hearsay rule. Tex.R.Evid. 803(6). To be properly admitted under the business records exception, the proponent must prove the document was made at or near the time of events recorded, by or from information transmitted by a person with knowledge of the events, and made and kept in the course of regularly conducted business activity. Id. The proper predicate for the introduction of a business record may be established through the testimony of a records custodian or other qualified witness. See id. Rule 803(6) does not require the predicate witness to be the record's creator or to have personal knowledge of the contents of the record. The witness need only have personal knowledge of the manner in which the records were created. See Tex.R.Evid. 803(6); Butler v. State, 872 S.W.2d 227, 238 (Tex.Crim.App. 1994), cert. denied, 513 U.S. 1157 (1995); Kan v. State, 4 S.W.3d 38, 45 (Tex.App. — San Antonio 1999, pet. ref'd). At trial, the State introduced exhibits 1-56 which included the inventory and sales records for 56 unpaid vehicles missing from Rod East Volkswagen's lot. Witness Karen Steinbring testified that she was the custodian of records for Rod East and for these exhibits. She further testified that these records were kept in the regular course of business and made by employees or representatives of Rod East who had actual knowledge of the events at the time the records were made. She also stated the records were made at or near the time of the events in question and that the records admitted into evidence were exact duplicates of the original records. Although Steinbring did not personally make the records, this factor is not a requirement for admissibility. The proper predicate for the admissibility of these records under Rule 803(6) has been satisfied. Any inadmissible portions of the records, such as the extraneous notations, were ruled as such by the trial court. We overrule English's sixth issue. 5. Issue seven asserts the trial court erred in admitting the double hearsay testimony of witness David Joseph Lane. In order to preserve a complaint for appeal, however, the record must show that a sufficiently specific and timely complaint is made to the trial court. Tex.R.App.P. 33.1(a); Dixon v. State, 2 S.W.3d 263, 265 (Tex.Crim.App. 1998). English did not object to hearsay. Even if English's singular comment regarding hearsay is taken as an objection, he failed to obtain an adverse ruling on this complaint. Dixon, 2 S.W.3d at 265. Issue seven is overruled. 6. In his eighth, ninth, and tenth issues, English contends the trial court erred in admitting evidence of his prior bad acts over his objections and in spite of a motion in limine which directed the parties to approach the bench before introducing extraneous evidence. The admission of evidence is a matter within the discretion of the trial court. Montgomery v. State, 810 S.W.2d 372, 378 (Tex.Crim.App. 1990); Avila v. State, 18 S.W.3d 736, 739 (Tex.App.-San Antonio 2000, no pet.). As long as the trial court's ruling was within the zone of reasonable disagreement, there is no abuse of discretion and the trial court's ruling will be upheld. Rachal v. State, 917 S.W.2d 799, 807 (Tex.Crim.App. 1996); Avila, 18 S.W.3d at 739. Texas Rule of Evidence 404(b) prohibits the admission of evidence of an extraneous offense when it is used to prove that a defendant acted in conformity with his or her character on a particular occasion. Tex. R. Ev. 404(b); Lockhart v. State, 847 S.W.2d 568, 570 (Tex.Crim.App. 1992). There are, however, exceptions to this rule. English first complains, in issue eight, that the trial court erred in admitting evidence that he had requested "kickbacks" from a witness. During its rebuttal case, the State called witness John Springer to testify about an incident in which English had asked him to purchase a car. During cross examination, the defense attempted to impeach Springer by showing he was biased against English, questioning him regarding a civil suit brought against him by English and eliciting testimony of Springer's dislike for English and for doing business with him. In response, the State questioned Springer as to the reasons he did not get along with English. Springer then testified that English had asked for money "under the table." English objected to this line of questioning, and the trial court overruled his objection. In issue nine, English argues the trial court erred in admitting evidence that he spent large amounts of money at strip clubs. The State questioned English's wife, Yvette, as to whether he carried around large amounts of cash. Yvette answered in the negative and also expressed that the family did not have a lot of extra money to spend. The State subsequently requested to introduce evidence showing English did regularly carry large amounts of cash and that he spent several hundred dollars a week at strip clubs. English objected, but the court overruled his objection, finding that the door was opened by Yvette English's testimony. Finally, in issue ten, English complains the trial court erred in admitting evidence regarding insufficient drafts he had written. The trial court allowed the State to introduce testimony from a witness who claimed English had written him insufficient drafts following a business arrangement. Although English objected, the court allowed the evidence in response to English's comment that he was "not a thief." Assuming without deciding that the references to English's behavior and bad acts were error, we find their admission to be harmless. See Tex.R.App.P. 44.2(b). A violation of the evidentiary rules that results in erroneous admission of evidence is a nonconstitutional error. See King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). Any nonconstitutional error that does not affect substantial rights must be disregarded. Tex.R.App.P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King, 953 S.W.2d at 271. We must examine the record as a whole and overturn the conviction only if we have a grave doubt that the result was free from the substantial influence of the error. Burnett v. State, 88 S.W.3d 633, 637-38 (Tex.Crim.App. 2002). The testimony regarding English's prior behavior was not enough, standing alone, to have a substantial negative effect on the jury's verdict. Even if the evidence concerning English's prior bad acts was improperly admitted, we do not have grave doubt that the jury's verdict was free from the influence of the error. Therefore, English's eighth, ninth, and tenth issues are overruled. 7. In his eleventh and twelfth issues, English claims the evidence is both legally and factually insufficient to support his convictions. We review the sufficiency of the evidence under traditional standards of review. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). The standard of review is the same in both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999). At trial, the State presented the testimony of several witnesses, including Tim Kiselis, the general sales manager of Rode East Volkswagen at the time of the alleged misapplication, Karen Steinbring, a title clerk at Rod East at the time of the incident, Guadalupe Renteria who purchased used cars from English as a wholesaler, and Eric Mayworm, a former used car porter for English, among others. The testimony shows that in the summer of 1999, Kiselis and others at Rod East Volkswagen began to notice monetary losses in the used car department. Kiselis questioned English who blamed any mix-ups on the non-payment of the wholesale purchasers. English resigned from his job in January of 2000, about the same time Kiselis, Steinbring and other employees at the dealership began to find even more significant losses, missing vehicles, and missing or mixed up titles in the used car division of Rod East. Employees of Rod East testified that English personally appraised, sold, and inventoried almost all of the used vehicles, that he worked long hours, that he had access to the vehicle titles, and that he often carried large amounts of cash. Wholesale buyers testified that English liked to deal only in cash, rather than the previously customary system of paying with bank drafts. Mayworm testified that English had him deposit large amounts of cash into a personal account several times and that he often delivered cars to Renteria. English served as used car sales manager for approximately one year. Subsequent to his resignation, Rod East Volkswagon discovered a total of 56 missing vehicles, totaling approximately $186,000 in lost inventory. Many of these vehicles were counted in English's monthly inventory when they were not physically on the lot; several had missing titles, and Rod East received payment for none. In response, the defense presented the testimony of English and his wife, Yvette. Both testified that English did not carry large amounts of cash. In addition, English refuted the State's witnesses and accused several of them of lying. The State's testimony, along with the other circumstantial evidence presented by the State, is legally and factually sufficient to support both of English's convictions. We overrule English's eleventh and twelfth issues. 8. In his thirteenth and final issue, English contends the trial court erred in allowing him to be convicted under both counts of the indictment because the offenses of theft and misapplication of fiduciary property are in pari materia. He further argues that, in this case the misapplication of fiduciary property statute is more specific, so he should have been prosecuted under that provision alone. Although the jury found English guilty of both misapplication of fiduciary property and theft, the trial court's judgment convicts him of only the misapplication of fiduciary property in the amount of $100,000 to $200,000, a second degree felony under Texas Penal Code § 32.45. Additionally, the trial court sentenced English to ten years' imprisonment, a term well within the statutory limits for a second degree felony defined under the Penal Code. See Tex. Penal Code Ann. § 12.33 (Vernon 2003). We, therefore, find it unnecessary to address whether English was wrongly convicted of both counts of the indictment. We overrule English's final issue. The judgment of the trial court is affirmed.
Even if English preserved his right to appeal as to issue three by complaining of the indictment's failure "to state with sufficient certainty what the Defendant is called upon to defend for" the alleged offenses in his motion to quash, the indictment certainly addresses this issue in the section following the words "to wit."
The trial court ruled that the records of Rod East Volkswagen regarding each of the 56 missing vehicles, including date of trade in, appraisal value, inventory history, sales records, and title, if available, were admissible as long as any extraneous notation made by employees of Rod East during their investigation and search for the vehicles was removed.