Opinion
No. 14-06-00261-CR
Opinion filed July 19, 2007. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 177th District Court Harris County, Texas Trial Court Cause No. 1029304.
Panel consists of Justices FROST, SEYMORE, and GUZMAN.
MEMORANDUM OPINION
A jury convicted appellant, Anthony Quang Tran, of theft and the trial court sentenced him to twenty-five years" confinement in the Institutional Division of the Texas Department of Criminal Justice. In four issues, appellant argues (1) the evidence is legally and factually insufficient to support a conviction, and (2) he received ineffective assistance of counsel. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On October 29, 2004, appellant, an engineer for a NASA contractor, opened an account in his son's name at the Johnson Space Center ("JSC") Credit Union. On the same day, he endorsed and deposited a check made payable to him from Marc USA/Pittsburgh Inc. ("Marc USA") in the amount of $128,486. In early November, appellant made four cash withdrawals totaling $20,500. On November 8, 2004, appellant executed wire transfers of $45,000 to a bank in Japan and $30,000 to a bank in the Netherlands. Appellant subsequently made another cash withdrawal and another wire transfer to the Netherlands. On November 15, 2004, appellant endorsed and deposited a second check from Marc USA in the amount of $193,758. Appellant subsequently made several cash withdrawals and wire transfers to the banks in Japan and the Netherlands. On December 3, 2004, appellant endorsed and deposited a third check from Marc USA in the amount of $197,337. Three days later he wire transferred $20,000 to Barclays Bank in London. He also withdrew cash and wired $168,000 to the bank in Japan. On December 17, 2004, appellant endorsed and deposited a check from Sundance Square Management Corp. ("Sundance Square") for $237,653.33. On December 23, 2004, appellant withdrew $5000 in cash and wired $10,000 to Barclays Bank in London. After making this final wire transfer, appellant began calling the JSC Credit Union and requesting that his wire transfers be rescinded. An employee of the credit union testified that during this time period, appellant phoned her ten to twenty times per day requesting that the bank reclaim the transferred funds. On December 24, 2004, the Sundance Square check was returned to the JSC Credit Union because the issuing bank determined it was counterfeit. Debra Reeder, vice-president of accounting at the credit union then reviewed the first three large checks that appellant had deposited and determined that they were also counterfeit. Marc USA did not issue the checks and did not consent to appellant negotiating or possessing the checks. Secret Service Agent Steve Dudek conducted an investigation into the counterfeit checks. Dudek interviewed appellant, and after waiving his constitutional rights, appellant made a statement to Dudek. In his statement, appellant claimed to have lost almost $200,000 as the victim of a "Nigerian 419 scam" during 2002 and 2003. Appellant said he received an email in 2004 from someone who claimed he could help appellant recoup his losses from the previous scam. Several emails, many from an alleged Nigerian official, Idiata Aigbedion, and an alleged attorney, Francis Ehimen, ensued. According to appellant, at the direction of Aigbedion and Ehimen, he agreed to open a separate account at his credit union. Appellant indicated he only agreed to participate if he did not have to contribute any of his own money. Appellant admitted that he deposited the four checks and made wire transfers to various banks around the world, something he had agreed to do in exchange for a fee. He also made several cash withdrawals. Appellant stated he did not know that the first three checks were counterfeit until he was arrested. When the fourth check did not clear, appellant said, "the bank caught it this time." According to appellant, it was only then that he realized he "had made an honest and stupid mistake." Appellant was charged by indictment with the felony offense of aggregate theft, committed between October 29, 2004, and December 23, 2004. After entering a plea of not guilty, appellant was convicted by a jury of the charged offense. The trial court sentenced appellant to twenty-five years" confinement in the Texas Department of Criminal Justice, Institutional Division. This appeal timely followed.II. SUFFICIENCY OF THE EVIDENCE
In his first two issues, appellant contends the evidence is legally and factually insufficient to support a conviction for theft. Specifically, appellant argues that he was a victim of a second scam and that he did not know the checks he was depositing were counterfeit. Therefore, he had no intent to commit theft.A. The evidence is legally sufficient to support appellant's conviction .
When reviewing the legal sufficiency of the evidence, we do not ask whether we believe that the evidence at trial established guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789 (1979). Rather, we examine the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Id. 443 U.S. at 319, 99 S.Ct. at 2789; Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995) (en banc). A person commits theft if he unlawfully appropriates property with intent to deprive the owner of it without the owner's effective consent. TEX. PENAL CODE ANN. ' 31.03 (Vernon Supp. 2006). The jury charge in this case included an instruction on the law of parties. A person is criminally responsible as a party to an offense if the offense is committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Id. ' 7.02(a)(2). In this case, the jury was authorized to convict appellant as a principle if it found that appellant, pursuant to one scheme and continuing course of conduct, appropriated by acquiring and otherwise exercising control over money owned by Debra Reeder and the JSC Credit Union, with the intent to deprive the complainants of the property. The jury was also authorized to convict appellant as a party if it found beyond a reasonable doubt that Idiata Aigbedion or Francis Ehimen unlawfully, pursuant to one scheme and continuing course of conduct, appropriated by acquiring or otherwise exercising control over money owned by Debra Reeder and the JSC Credit Union with the intent to deprive the complainants of the property, and that appellant, with the intent to promote or assist the commission of the offense, solicited, encouraged, directed, aided or attempted to aid Idiata Aigbedion or Francis Ehimen to commit the offense. In reviewing the evidence to determine whether it is sufficient to support appellant's conviction as a principle or a party, the crucial issue is intent. Appellant admitted he deposited the checks and that he withdrew cash and executed wire transfers from the account. He argues he had no intent to commit theft because he was a victim of a scam and did not know the checks were counterfeit. Proof of a mental state almost always depends upon circumstantial evidence. Varnes v. State, 63 S.W.3d 824, 833 (Tex.App.-Houston [14th Dist.] 2001, no pet.). To determine culpability for an offense, the jury is entitled to consider events that occurred before, during, and after the commission of the offense. Mouton v. State, 923 S.W.2d 219, 223 (Tex.App.-Houston [14th Dist.] 2001, no pet.); see also Godsey v. State, 719 S.W.2d 578, 581 (Tex.Crim.App. 1986) (en banc). As part of the investigation, Secret Service agents reviewed email correspondence and other documents found on the hard drive of appellant's home computer. The record reflects that appellant corresponded via email with Idiata Aigbedion and Francis Ehimen. Over the course of the email correspondence, appellant received wire transfer instructions. On October 8, 2004, prior to receiving the first check, appellant sent an email to Ehimen stating, "Let's hope this check is for real." In a subsequent email correspondence with Aigbedion appellant stated:Regarding the Western Union, Since the Sept. 11, 2001 terrorist attacked [sic] on the US Soil, the US Justice department had a new Law, the Patriot Act, which was created by the US Congress, It has the legal right to monitor all money transactions in and out of the country, especially from those countries that are listed under Terrorist is [sic] watch. Unfortunately, Nigeria is on that list.
When they see a large sum of cash send [sic] in to Nigeria with no clear business or personal reasons, they can stop it from sending and give it back to the sender. They are not confiscating it, because they are suspicious of the transaction only, if they have considered as some sort of illegal activity, then they will take away the money and conducting a formal investigations, this is how my previous attorney and his "clowns" were arrested, last time.Based on these emails, the jury could have inferred that appellant knew the checks were counterfeit and thus that appellant was not the victim of a scam. Appellant expressed concern that the checks were not "real" and discussed with Aigbedon how to avoid regulations intended to discover suspicious transactions. The record further reflects that appellant made inconsistent statements to credit union employees about the nature of the account he opened in his son's name. He initially told the credit union that the account was for his son's college fund, but when Reeder asked where the large checks originated, appellant told her he was attempting to start a business in another country. The email correspondence also revealed that appellant conducted the transactions under the guise of an international business. Further, appellant's actions prior to the deposit of the last check indicated he was not an innocent victim of a scam. Appellant phoned the credit union ten to twenty times per day attempting to reclaim the money from the wire transfers. The jury could have inferred from this evidence that appellant knew the checks were counterfeit and had reason to believe that the credit union would discover the theft. Viewing the evidence in the light most favorable to the verdict, we hold that a rational jury could have found the elements of the offense of aggregate theft beyond a reasonable doubt. We overrule appellant's first issue.