Opinion
No. 05-11-00082-CR
07-24-2012
ERIC REED MARASCIO, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM as modified; Opinion issued July 24, 2012
On Appeal from the 380 District Court
District Court of Collin County, Texas. (Tr.Ct.No. 380-82408-08).
Collin County, Texas
Trial Court Cause No. 380-82408-08
OPINION
Before Justices Bridges, Francis, and Lang
Opinion By Justice Bridges
Eric Reed Marascio appeals his money laundering conviction. A jury convicted appellant and sentenced him to seventy-five years' confinement and a $10,000 fine. In two points of error, appellant argues the trial court erred in (1) refusing to appoint an accountant, a real estate expert, and a handwriting analysis expert to assist him and (2) admitting evidence of a search warrant and affidavit at punishment over his objection. In a single cross-point, the State argues the judgment should be reformed to correctly identify the presiding judge. As reformed, we affirm the trial court's judgment.
In 2005, appellant and Ehssan Agha worked together in a company called PublicHomes.com which was involved in the “flipping” of real estate properties. They bought properties, usually from builders at a small discount, and sold them to pre-selected “straw buyers” with good credit using larger inflated appraisals. The buyers did not intend to occupy the properties, and appellant and Agha falsified the buyers' assets and income. The buyers were paid for their participation in the scheme, and Agha and appellant and others involved in the transaction received a share of the profits. All buyers defaulted on the mortgage loans after the purchase.
One of the homes Agha and appellant were involved in “flipping” was the house at 505 Carrington in Murphy, Texas, which forms the basis of the underlying offense. Appellant was listed as the purchaser of the house from the builder, but Agha actually put up the $300,000 purchase price. Appellant was aware Agha was going to close the sale using a power of attorney from appellant, and appellant took money from the sale when the house was flipped. The appraisal on the house was for $620,000. The first straw buyer for the house did not qualify for the loan, so appellant's girlfriend, Ashley Reifer, was selected to be the straw buyer. Appellant and Reifer also entered a sales contract for the property at $620,000. This time, after falsely inflating Reifer's income as a paralegal to $15,950 per month on the loan application, the loan went through. After closing, $597,063.13 was deposited into appellant and Agha's joint account. Reifer made $7000 from the sale, and the remainder of the profits were distributed among appellant, Agha, and a few others involved in successfully obtaining the loan. The house at 505 Carrington subsequently went into foreclosure, and appellant was charged with the underlying money laundering offense as a result of the 505 Carrington transaction.
Following his arrest, appellant was able to bond out of jail but was required to wear an “ankle bracelet” monitor as a condition of the bond. Appellant cut off the ankle bracelet monitor and ran away, failing to appear at a March 2009 pretrial hearing or an April 2009 trial setting. Appellant was captured in South Carolina in May 2009 and returned to Texas where his trial began in November 2010.
Before trial, the State filed a fifteen-page notice of its intent to introduce evidence of other acts, crimes, and wrongs including the following: bail jumping and failure to appear in this case in March and April 2009; a guilty plea to an aggravated promotion of prostitution charge in October 2003; false statement to obtain property or credit over $200,000; instances of misconduct during his active duty in the air force resulting in his discharge prior to completing his full term of enlistment; false statement to obtain property or credit, money laundering, and engaging in organized criminal activity involving the purchase and resale of thirty-eight other properties in Texas between 2005 and 2008; becoming part of a group of individuals claiming to denounce their U.S citizenship and become “world citizens/Moor Nationals/Mu'ur Republic members with diplomatic immunity from prosecution, income taxes, and any state or federal authority”; presenting and using a governmental record he knew contained false statements: a pleading stating he was not the defendant in the underlying case and was immune from criminal and civil jurisdiction, arrest, and detention; possessing false documents identifying him as “Reed Marcon El, a diplomat from the Mu'ur Republic”; creating a false paystub or pay record for “Natalie Reynolds”; forging homeowners' signatures on change of address forms in order to route mail to his office in June 2007 and July 2008; involving himself with making counterfeit passports and identification for himself and other “Mu'ur associates”; filing a false affidavit that he was not criminally liable for the underlying criminal case pursuant to the Uniform Commercial Code; having nine indictments pending against him in Collin County; and making misrepresentations about being one of only seven people ever to be honored with a key to the City of Tuscaloosa, Alabama by the mayor in 2008 for his humanitarian work in rescuing missing and abducted children and claiming he was personally responsible for 2 missing children being recovered. Appellant elected to represent himself and decline the services of the court-appointed attorney that had been assisting with his case. At that time, a forensic accountant and a court-appointed investigator had been assisting appellant's counsel. At the hearing at which appellant elected to represent himself, the trial court noted appellant had four prior attorneys and strongly cautioned appellant against representing himself in this case. Appellant stated he wanted to keep the forensic accountant but not the investigator. Appellant did not request any additional court-appointed experts at that time. At a subsequent pretrial hearing, appellant's former appointed counsel informed the court that the forensic accountant was “finished” and had “no desire to work for” appellant. At that time, appellant did not request the appointment of another accountant or any other expert.
Five days before an October 11, 2010 trial setting, at a hearing on twenty-one pretrial motions filed by appellant, appellant for the first time requested that the trial court appoint a mortgage financing expert and a private investigator. The trial court denied appellant's requests, noting appellant had a private investigator but said he no longer desired his services. Appellant's trial was reset to November 29, 2010, and appellant hired his own investigator. On November 1, 2010, appellant filed motions requesting a real estate expert and a handwriting expert and requested a hearing on the motions. At the hearing, appellant stated he needed a real estate expert because the charged offense involved money laundering in a real estate transaction, he had no real estate or mortgage experience, and it would help his defense if he had “somebody come in and decipher this real estate transaction that I have no idea as to how I'm involved.”
Appellant handed two unidentified pieces of paper to the trial judge and explained they were “two key pieces of evidence” the State planned to introduce, “claiming that as my signature, when clearly it's not.” Appellant requested a handwriting expert to determine conclusively the documents did not bear his signature. The State responded that it was irrelevant whether or not appellant signed a particular document because the allegations against appellant were that he “facilitated a transaction, which was the purchase of 505 Carrington with the proceeds of a false statement to obtain property or credit.” Further, the State explained the two documents had nothing to do with the 505 Carrington transaction and related to “some extraneous offenses.” The trial court denied appellant's motions.
The case went to trial, and a jury convicted appellant of money laundering. At punishment, the State called Dallas police corporal Claude Hall, who testified he was working with Vice in December 2001 investigating possible prostitution activity at an apartment in Dallas. Hall began the investigation by responding to advertisements in the Dallas Observer. Following the investigation, Hall obtained a search and arrest warrant at the apartment for an individual named Ramon Mendez and appellant. Hall identified appellant in court as one of the individuals named in the arrest warrant. Hall testified there was also a search warrant listing certain items of property. When the prosecutor asked what items were obtained pursuant to the search warrant, appellant objected to Hall “testifying from a document that's not in evidence.” The trial court sustained appellant's objection, and the prosecutor offered into evidence a certified copy of the search warrant and affidavit. The trial court overruled appellant's hearsay objection and admitted the search warrant and affidavit. The prosecutor then elicited Hall's testimony concerning the items recovered pursuant to the search warrant. Hall later testified without objection that he was aware appellant pled guilty to the charge of aggravated promotion of prostitution. The prosecutor admitted without objection a copy of the aggravated promotion of prostitution judgment and judicial confession. The prosecutor read appellant's judicial confession without objection. The jury sentenced him to seventy-five years' confinement and a $10,000 fine. This appeal followed.
In his first point of error, appellant complains the trial court erred in refusing to appoint a real estate expert, a handwriting analysis expert, and an accountant. In Ake v. Oklahoma, 470 U.S. 68 (1985), the United States Supreme Court held that due process may require that an indigent defendant be granted access to expert assistance if “the expert can provide assistance which is 'likely to be a significant factor' at trial.” Id. at 74; Ex parte Jimenez, 364 S.W.3d 866, 876 (Tex. Crim. App. 2012).
Three interests must be balanced in determining whether the trial court must provide such access: (1) the private interest that will be affected by the action of the trial court; (2) the governmental interest that will be affected if the safeguard is to be provided; and (3) the probable value of the additional or substituted procedural safeguards that are sought and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided. Ake, 470 U.S. at 77; Jimenez, 364 S.W.3d at 876. This analysis is conducted with a view towards whether failing to provide the defendant with the expert help he claims is necessary creates a “high risk of an inaccurate verdict.” Busby v. State, 990 S.W.2d 263, 271 (Tex. Crim. App. 1999). However, the trial court need not “purchase for an indigent defendant all the assistance that his wealthier counterparts might buy.” Ake, 470 U.S. at 77; Jimenez, 364 S.W.3d at 876-77.
If the defendant makes a sufficient threshold showing of the need for expert assistance on a particular issue, the defendant is entitled to access to at least one expert who, even if he cannot or will not testify to the defense's theory of the case, is “available to consult with counsel, to interpret records, to prepare counsel to cross-examine State's witnesses, and generally to help present appellant's defense in the best light.” Jimenez, 364 S.W.3d at 877. The question in each case is “how important the scientific issue is in the case, and how much help a defense expert could have given; the nature of an expert's field and the importance and complexity of the issue will bear directly upon whether the appointment of an expert will be helpful.” Id. The United States Supreme Court has stated that an indigent defendant is not entitled to the appointment of experts when he offers “little more than undeveloped assertions that the requested assistance would be beneficial.” Caldwell v. Mississippi, 472 U.S. 320, 323 n.1 (1985); Jimenez, 364 S.W.3d at 877-78. He must provide concrete reasons for requiring the appointment of any particular expert. Id. at 878. Courts uniformly stress that the showing of need must set forth in detail what assistance is being requested and why it is needed. Id. The defense must identify the expert, explain what the expert will do, and explain why that will be important in representing the defendant. Id.
Thus, courts have held that a trial judge does not err in denying funds for an appointed expert if the defense fails to set out the name of the requested expert in his motion, why the expert is necessary in the particular case, and the approximate cost of appointing that expert. Id. The reasonableness of a trial judge's denial of an Ake motion depends upon the specific information that the trial judge had in front of him at the time that he denied that motion. Id. In cases holding that a sufficient showing was not made under Ake, the defendant typically has failed to support his motion with affidavits or other evidence in support of his defensive theory, an explanation as to what his defensive theory was and why expert assistance would be helpful in establishing that theory, or a showing that there was reason to question the State's expert and proof. Id.
Here, appellant stated he needed a real estate expert because the charged offense involved money laundering in a real estate transaction, he had no real estate or mortgage experience, and it would help his defense if he had “somebody come in and decipher this real estate transaction that I have no idea as to how I'm involved.” Appellant handed two unidentified pieces of paper to the trial judge and explained they were “two key pieces of evidence” the State planned to introduce, “claiming that as my signature, when clearly it's not.” Appellant requested a handwriting expert to determine conclusively the documents did not bear his signature. Appellant did not request the appointment of an accountant to replace the accountant the trial court discharged. We conclude appellant's requests for real estate and handwriting analysis experts were “little more than undeveloped assertions that the requested assistance would be beneficial.” See Caldwell, 472 U.S. at 323 n.1; Jimenez, 364 S.W.3d at 877-78. Accordingly, the trial court did not err in denying his requests. See Caldwell, 472 U.S. at 323 n.1; Jimenez, 364 S.W.3d at 877-78. We overrule appellant's first point of error.
In his second point of error, appellant argues the trial court erred in admitting into evidence the search warrant and affidavit related to his prosecution for aggravated promotion of prostitution. The State concedes the statements in the search warrant and affidavit were hearsay and therefore inadmissible. However, as the State argues, an error, if any, in the admission of evidence is harmless where the same evidence comes in elsewhere without objection. Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004). Here, the same information contained in the search warrant and affidavit came in without objection in the form of Hall's testimony and appellant's judicial confession to the offense of aggravated promotion of prostitution. Accordingly, the error, if any was harmless. See id. We overrule appellant's second point of error.
In a single cross-point, the State argues the judgment should be reformed to correctly identify the presiding judge. We have authority to correct a trial court's judgment to make the judgment speak the truth when we have the necessary information to do so. Tex. R. App. P. 43.2(b); see Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). Accordingly, we reform the trial court's judgment as follows: the reference to the Honorable Suzanne Wooten as presiding judge is deleted, and the Honorable Quay Parker is inserted as presiding judge.
As reformed, we affirm the trial court's judgment.
DAVID L. BRIDGES
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110082F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ERIC REED MARASCIO, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00082-CR
Appeal from the 380
Opinion delivered by Justice Bridges, Justices Francis and Lang participating.
Based on the Court's opinion of this date, the judgment of the trial court is REFORMED as follows: the reference to the Honorable Suzanne Wooten as presiding judge is deleted, and the Honorable Quay Parker is inserted as presiding judge. As reformed, the judgment of the trial court is AFFIRMED.
Judgment entered July 24, 2012.
DAVID L. BRIDGES
JUSTICE