Turner v. State

Full title: KATHERINE ELVA TURNER, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourth District, San Antonio

Date published: Aug 25, 2004

No. 04-03-00436-CR (Tex. App. Aug. 25, 2004)

Opinion

No. 04-03-00436-CR

Delivered and Filed: August 25, 2004. DO NOT PUBLISH.

Appeal from the 399th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CR-0867. Honorable Juanita Vasquez-Gardner, Judge Presiding. Affirmed.

Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Karen A. ANGELINI, Justice.

MEMORANDUM OPINION

Opinion by: CATHERINE STONE, Justice.

A jury convicted appellant, Katherine Turner, of the offenses of theft and of securing execution of document by deception. The trial court sentenced Turner to three years of community supervision. On appeal, Turner challenges the legal sufficiency of the evidence supporting the conviction of securing execution of document by deception and contends her trial counsel provided ineffective assistance of counsel. We disagree and affirm the judgment of the trial court.

Factual Background

Katherine Turner was employed by Robert Meyers as a filing clerk at his law firm. For some period of time Meyers was involved in an extra-marital affair with Turner. Meyers testified that their affair ended when she became an employee; however, Turner stated it went on for more than five years. Turner testified that Meyers would buy her gifts, take her out of town for weekend getaways, and help her with her school tuition and car payments. She explained that Meyers told her to go to Peggy Rudder, his law firm's office manager, whenever she needed personal money. According to Turner, Rudder complied with Turner's requests per Meyers's instructions. Meyers, however, testified to the contrary. He stated that after Turner had been working for him for a couple of years, he was in the process of getting a divorce and going through his financial records when he realized that Turner and Rudder had been stealing from him. Turner and Rudder were subsequently indicted on theft allegations, and Rudder pled guilty prior to Turner's trial. A jury found Turner guilty of theft and securing execution of document by deception.¹ The trial court denied Turner's motion for new trial and this appeal ensued.

Legal Sufficiency

Turner challenges the sufficiency of the evidence to support the conviction of securing execution of document by deception because she claims she did not deceive anyone into signing any checks. When reviewing the legal sufficiency of the evidence, the appellate court must view the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Crim.App. 1998); Johnson v. State, 103 S.W.3d 463, 464 (Tex. App.-San Antonio 2003, no pet.). "A determination that the evidence is `legally insufficient' means that the case should never have been submitted to the jury." Clewis v. State, 922 S.W.2d 126, 132-33 (Tex.Crim.App. 1996). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App. 1991) (citing Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim. App. 1988)). In this case, the jury was charged as follows regarding securing execution of document by deception:

Now if you find from the evidence beyond a reasonable doubt that . . . Katherine Turner, either acting alone or together with Peggy Rudder as a party, with intent to harm or defraud any person, namely, R. Meyers or Robert John Meyers and Associates, did by deception cause another, namely, K. Turner, P. Rudder, or H. Gonzalez, to sign or execute documents, namely [checks].²

Turner challenges the legal sufficiency of the evidence on this count since she claims that she did not cause anyone to sign checks by deception, especially herself, Rudder, or Hector Gonzalez (an attorney in the office). Every check required two signatures: Rudder's and Gonzalez's. Turner testified that she never forged any signatures on the checks, but that Rudder would give them to her already signed. At some point, however, Gonzalez left Meyers's firm, but remained on the signature card. Turner explained that Gonzalez permitted Rudder to sign the checks for him and he pre-signed some checks. Whether Rudder forged Gonzalez's signature, Gonzalez pre-signed some checks, or even if Turner forged his signature as Rudder alleges, Turner claims no one actually signing or forging the checks was ever deceived into doing so. Viewing the evidence in the light most favorable to the verdict, we hold the evidence is legally sufficient to support the verdict. The charge stated that the jury may find Turner secured execution of document by deception alone or together with Rudder as a party. In order for Turner to be criminally responsible for an offense committed by Rudder, Turner must have acted with the intent to promote or assist the commission of the offense; she must have solicited, encouraged, directed, aided, or attempted to aid Rudder to commit the offense. See Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). "In determining whether a defendant participated in an offense as a party, the court may examine the events occurring before, during, or after the commission of the offense, and may rely on actions of the defendant which show an understanding and common design to commit the offense." Miranda v. State, 813 S.W.2d 724, 732 (Tex. App.-San Antonio 1991, pet. ref'd). Turner and Rudder both stated that Gonzalez pre-signed some checks so that office bills could be paid without waiting for Gonzalez's signature. Rudder testified that she did forge Gonzalez's signature at times. The jury could rationally infer that Rudder deceived Gonzalez into pre-signing checks thinking they would be used to pay office bills when they were used for personal benefit. Further, Rudder and another employee, Melissa Krueger, testified that Rudder and Turner worked together to trace Gonzalez's signature on checks that were not pre-signed. If there are conflicts in the evidence, such as between these testimonies and Turner's, we presume that the jury resolved conflicts in favor the prevailing party. See Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App. 1993). Thus, since "[c]ircumstantial evidence alone can be sufficient to show that one is a party to the offense," it is reasonable for the jury to find that if Turner participated in the forgeries with Rudder she also participated in deceiving Gonzalez to pre-sign checks for personal benefit. Miranda, 813 S.W.2d at 732. Therefore, we hold that a rational trier of fact could have found beyond a reasonable doubt that Turner, acting as a party with Rudder, secured execution of these checks by deceiving Gonzalez.³

Motion for New Trial

Turner appeals the denial of her motion for new trial based on her claims that the evidence is legally insufficient and that her trial counsel rendered ineffective assistance. We review a trial court's ruling on a defendant's motion for new trial under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App. 2001). "We do not substitute our judgment for that of the trial court, but rather decide whether the trial court's decision was arbitrary or unreasonable." Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App. 1995).⁴

Ineffective Assistance of Counsel

Turner contends she was denied effective assistance of counsel as required under the Sixth Amendment of the United States Constitution. Specifically, she alleges that her trial counsel failed to properly investigate her case, object during the State's opening argument, request various jury instructions, and request an instructed verdict. "To show that trial counsel was ineffective, appellant must demonstrate that: 1) trial counsel's performance was deficient because it fell below an objective standard of reasonableness; and 2) a probability sufficient to undermine confidence in the outcome existed that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Rylander v. State, 101 S.W.3d 107, 109-10 (Tex.Crim.App. 2003) (citing Strickland v. Washington, 466 U.S. 668, 688, 691 (1984)). "In other words, appellant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim. App. 1999). We are highly deferential in reviewing counsel's representation, and "we indulge a strong presumption that counsel's conduct falls within a wide range of reasonable representation." McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim. App. 1996). Appellant bears the burden to overcome this presumption. Id. Appellant's allegations must be firmly founded in the record, which must affirmatively reveal the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. Further, "[a]ppellant must prove that counsel's errors, judged by the totality of the representation, not by isolated instances of error or by only a portion of trial, denied him a fair trial." McFarland, 928 S.W.2d at 500. If appellant cannot show that trial counsel's performance was deficient and that sufficient prejudice followed as a result, then appellant's claim for ineffective assistance is defeated. Thompson, 9 S.W.3d at 813.

Failure to Properly Investigate

Turner contends that her trial counsel, Albert Rodriguez, rendered ineffective assistance of counsel by failing to properly investigate her case. The trial counsel has a "`duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.'" McFarland, 928 S.W.2d at 501 (quoting Strickland v. Washington, 466 U.S. 668, 691 (1984)). Within this obligation, counsel is expected "to seek out and interview potential witnesses" since counsel should not "rely on the veracity either of his client's version of the facts or witness statements in the State's file." Cantu v. State, 993 S.W.2d 712, 718 (Tex. App.-San Antonio 1999, pet. ref'd). In analyzing counsel's duty to investigate, we allow a great deal of deference to counsel's judgment and determine the reasonableness of counsel's actions in light of the totality of the circumstances. Cantu, 993 S.W.2d at 718. The appellant must show how his representation would have improved from added consultation and investigation. Paez v. State, 995 S.W.2d 163, 171 (Tex. App.-San Antonio 1999, pet. ref'd). "We will sustain the defendant's challenge only if the consequence of the failure to investigate is that the only viable defense available to the accused is not advanced, and there is a reasonable probability that, but for counsel's failure to advance the defense, the result of the proceeding would have been different." Cantu, 993 S.W.2d at 718 (citing Strickland v. Washington, 466 U.S. 668, 694 (1984); McFarland v. State, 928 S.W.2d 482, 501 (Tex.Crim. App. 1996)). Turner argues that her trial counsel of one and a half years completely failed to fully investigate her case, which prevented him from presenting her defense of consent. Specifically, Turner contends Rodriguez's representation was deficient because he: (1) did not call witnesses who would have testified about the relationship between Meyers and Turner, thus supporting her defense that she had permission from Meyers to receive and expend his funds based on their intimate relationship; (2) did not attempt to speak with co-defendant Rudder, who had agreed to testify against Turner as part of her plea; (3) failed to obtain Meyers's payroll records to prove that some of the checks she received were for loans that she had paid back, and failed to review the State's exhibits that included payroll records; (4) failed to obtain Meyers's credit card records to show the numerous expenditures he had made on her behalf; and (5) failed to hire a handwriting expert or document examiner to prove that the signed checks were not forgeries. In light of the totality of the circumstances, we cannot say that Rodriguez rendered ineffective assistance of counsel by allegedly failing to investigate Turner's case. Regarding the witnesses attesting to Turner's and Meyers's relationship, Rodriguez testified that Turner never gave him their names and that he had never heard of them until the motion for new trial. If indeed these witnesses were unavailable to Rodriguez, then the fact that Rodriguez failed to call them is irrelevant. See King v. State, 649 S.W.2d 42, 44 (Tex.Crim.App. 1983). Rodriguez stated that Turner told him the only people with knowledge of her affair were her mother, Rudder, and Gonzalez. Rodriguez noted that Turner had indicated to him that she wanted her affair discussed only as necessary since she feared the media would be there to listen to all of her sexual episodes. Rodriguez's trial strategy was to use only Turner's testimony regarding the affair and not bring others forward so that discussion of the affair would be at a minimum. Although Turner's and Rodriguez's testimonies contradict, the trial court maintains the authority to judge the credibility of the witnesses and the weight to be given their testimony. See Haygood v. State, 127 S.W.3d 805, 814 (Tex. App.-San Antonio 2003, pet. ref'd). As to why he never attempted to speak to Rudder in order to corroborate Turner's version of the events, Rodriguez stated that he assumed Turner was telling the truth and his intention was not to discredit his client. Thus, he saw no reason to verify Turner's version of events. In addition, the record shows that Rodriguez did review the State's file and the paperwork regarding Rudder's plea agreement. When questioned about his failure to obtain the payroll records, Rodriguez explained that the loans Turner had purportedly paid back in the form of payroll deductions were minimal. Rodriguez stated that Meyers admitted that Turner was paying back some of the money; therefore, he did not believe the documents were necessary. Further, he noted that he could not specifically attribute the loan payments to any of the checks in the indictment since there were so many checks and even Turner did not know which loans were paid back. As far as the credit card records, Rodriguez may have felt the records would not have been helpful, but it is not for us to speculate when the record is silent. See Thompson, 9 S.W.3d at 814. In reviewing Rodriguez's performance, we will not second guess Rodriguez's tactical decisions which do not fall below the objective standard of reasonableness. See Young v. State, 991 S.W.2d 835, 837 (Tex.Crim.App. 1999). Rodriguez also testified that not hiring a handwriting expert was part of his trial strategy considering such factors as time, expense, and overall benefit. When confronted with the affidavit of handwriting expert Jeanette Hunt at the hearing for a new trial, Rodriguez noted that Hunt was not cross-examined and that she did not say for sure whether the signatures were traced, but rather stated the probability that they were not. We cannot say that Rodriguez rendered ineffective assistance since Hunt's affidavit did not state with certainty whether Turner would benefit from her testimony. See King, 649 S.W.2d at 44. Turner failed to establish that Rodriguez's investigation was deficient and that his investigation prejudiced her at trial.

Trial Errors

Failure to Object Turner alleges that Rodriguez rendered ineffective assistance of counsel by failing to object to the State's improper argument. During the State's opening statement, the prosecutor described Turner as a "beer girl" when he described her employment status at a country club at the time she met Meyers. Turner also claims the prosecutor improperly described the situation when Meyers confronted Turner about the checks:

And it's kind of interesting when you see a lot of these situations where people don't immediately admit their guilt. When they're confronted with a charge, they have about five seconds to answer. Anything longer than five seconds and it's obvious that you're lying. The problem is in five seconds you can only come up with a poor story at best to try to explain and that's what she did.

The prosecutor then commented on Turner's contention that Hector Gonzalez pre-signed checks: "Now, Hector's going to tell you that he did not presign a bunch of blank checks. In fact, no attorney is ever going to sign a bunch of blank checks. It's just not smart." During the hearing on the motion for new trial, Rodriguez explained that he did not object because he did not think these comments rose to the level of any harm. He did not want to be continuously objecting to matters that did not merit an objection in his opinion. Rodriguez's failure to object does not meet the standard for ineffective assistance of counsel. Turner's contentions are not sufficient to show that Rodriguez's decision not to object is so lacking in strategic decision-making as to overcome the presumption that his conduct was reasonable and professional. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002).⁵ Jury Instruction on Mistake of Fact Turner also argues that Rodriguez rendered ineffective assistance by failing to request a jury instruction on a mistake of fact defense. If the evidence raises a defensive issue then "the defendant is entitled to have a requested instruction concerning this defense submitted to the jury in the court's charge." Willis v. State, 790 S.W.2d 307, 315 (Tex.Crim.App. 1990). The defendant has a right to such instruction regardless if the evidence supporting the instruction is weak or strong and whether the trial court thinks the evidence is credible. Granger v. State, 3 S.W.3d 36, 38 (Tex.Crim.App. 1999). "If the evidence viewed in a light favorable to appellant does not establish a mistake of fact defense, an instruction is not required." Id. Mistake of fact is a "defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense." Tex. Pen. Code Ann. § 8.02(a) (Vernon 2003). This defense will apply only if the actor's mistake affects the mens rea for the offense charged. Thomas v. State, 855 S.W.2d 212, 214 (Tex. App.-Corpus Christi 1993, no pet.). The State charged Turner with the offenses of theft and of securing execution of document by deception. For theft, one must unlawfully appropriate property with intent to deprive the owner of property. Tex. Pen. Code Ann. § 31.03 (a) (Vernon 2004). One way to unlawfully appropriate property is to do so without the owner's effective consent. Tex. Pen. Code Ann. § 31.03 (b) (Vernon 2004). The consent is not effective if one induces it by deception or coercion, or knows that the person giving the consent is not legally authorized to act for the owner. Tex. Pen. Code Ann. § 31.01 (3) (Vernon 2004). For securing execution of document by deception one must have committed the offense with the intent to defraud or harm the person by deception. Tex. Pen. Code Ann. § 32.46 (a) (Vernon 2004). Turner argues that her sole defense was that she had Meyers's consent and permission to take the funds she did. Thus, she alleges that she cannot be guilty of theft or securing execution of document by deception since she had Meyers's effective consent, and she never defrauded or even intended to defraud him by deception. Although Rodriguez admits this was their defense, he discussed the lack of instruction during the motion for new trial hearing, stating the following: "I didn't see that the — the evidence rose to that point that it was just a mistake." Assuming it was error not to request the mistake of fact instruction, we must analyze whether this alleged error was so egregious and created such harm that Turner did not have a fair and impartial trial. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984). We evaluate the harm "in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Id. There is no evidence that Turner was egregiously harmed and that the result of the proceeding would have been different if Rodriguez had requested the instruction. As her primary defense, Turner claimed she had Meyers's consent to take the money. She testified that she did not take anything away from him without his permission. Therefore, when the jury found her guilty of theft and securing execution of document by deception, it clearly chose not to believe her claim that she had Meyers's consent and was not intending to defraud anyone.⁶ In other words, the jury had to consider her defense of consent before finding her guilty, and there is no indication that including a mistake of fact instruction would have changed the outcome. See Bruno v. State, 845 S.W.2d 910, 913 (Tex.Crim.App. 1993) (stating that jury would have been required to disbelieve appellant's story before it could find sufficient evidence to convict, thus the instruction need not have been given); Sands v. State, 64 S.W.3d 488, 496 (Tex. App.-Texarkana 2001, no pet.); Hefner v. State, 735 S.W.2d 608, 624-25 (Tex. App.-Dallas 1987, pet. ref'd) abrogated on other grounds, Campbell v. State, 5 S.W.3d 693 (Tex.Crim.App. 1999). Even if Rodriguez's performance was deficient in not requesting an instruction on mistake of fact, it did not prejudice Turner's case and thus, did not constitute ineffective assistance of counsel.

Jury Instruction on Accomplice Witness Testimony

Turner alleges Rodriguez also rendered ineffective assistance of counsel in failing to request an accomplice-witness instruction as a matter of law for Rudder and as a matter of fact for Gonzalez. Rudder was convicted of theft (between $20,000 and $100,000) for stealing from Meyers by using pre-signed checks and forging Gonzalez's signature on other checks. A plea agreement ensued where Rudder was placed on deferred adjudication probation and ordered to pay back the money she stole; in addition, she agreed to testify in Turner's trial. Rudder is an accomplice as a matter of law since she was indicted for the same offense with which Turner was charged. See Ex Parte Zepeda, 819 S.W.2d 874, 876 (Tex.Crim.App. 1991). "If a prosecution witness is an accomplice as a matter of law, the trial court is under a duty to instruct the jury accordingly" and failure to do so is error. Herron v. State, 86 S.W.3d 621, 631 (Tex.Crim.App. 2002). Accordingly, Rodriguez's failure to request an accomplice witness instruction regarding Rudder's testimony fell below an objective standard of reasonableness, and thus his performance was deficient. See Zepeda, 819 S.W.2d at 877. Under the Strickland test, the second prong is whether "but for counsel's unprofessional errors, the result of the proceeding would have been different." Rylander, 101 S.W.3d at 110. The Texas Code of Criminal Procedure states that a "conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). "The purpose of this rule is to assure that the jury does not consider the accomplice witness's testimony unless it finds that the accomplice witness is telling the truth and that other evidence corroborates the discredited witness's testimony." Howard v. State, 972 S.W.2d 121, 125 (Tex. App.-Austin 1998, no pet.). Therefore, we must review the record to see how essential Rudder's testimony was to the State's case. See Zepeda, 819 S.W.2d at 877 (holding trial counsel's failure to request an accomplice witness instruction constitutes ineffective assistance of counsel since the accomplice witness testimony was the essential evidence connecting appellant to the crime). Turner is harmed by the lack of instruction only if the corroborating evidence is "so unconvincing in fact as to render the State's overall case for conviction clearly and significantly less persuasive." See Saunders v. State, 817 S.W.2d 688, 692 (Tex.Crim.App. 1991). Rudder testified that Turner forged Gonzalez's signature on checks. She explained that she and Turner would practice tracing Gonzalez's name in order to sign the checks. Rudder clarified that besides the checks Gonzalez pre-signed, Turner forged Gonzalez's signature for the checks she herself stole and that Rudder forged his signature for the ones she specifically stole. The State argues that the lack of instruction regarding this testimony was not prejudicial since Turner's own testimony sufficiently connects her to the crime. Turner testified that she did receive checks from Rudder, but she acted with Meyers's consent and never forged anything. Aside from Rudder's accomplice testimony, there is sufficient evidence connecting Turner to the crime. Meyers testified that he did authorize some loans to Turner, but not nearly as many as he later found when reviewing his bank statements. After he fired Rudder and Turner he located the missing checks from his bank statements hidden in their workstations. Gonzalez denied Rudder's and Turner's allegation that he pre-signed checks after he had left the office. He testified that those signatures were not his, and he did not have any knowledge of who forged his signature. Melissa Krueger, a legal assistant in Meyers's firm, testified that she saw Rudder tracing a signature onto a check while Turner looked on. At another time, Krueger saw Rudder tracing a signature from a letterhead onto a check with Turner standing next to her. Although Rudder's testimony is damaging, the other witnesses provided sufficient corroborating testimony to find Turner guilty of theft and securing execution of document by deception. "[N]on-accomplice evidence can render harmless a failure to submit an accomplice witness instruction by fulfilling the purpose an accomplice witness instruction is designed to serve." Herron, 86 S.W.3d at 632. Since Turner did not meet the prejudice prong of the Strickland test, Rodriguez's failure to request an accomplice witness instruction for Rudder's testimony did not constitute ineffective assistance of counsel. Turner claims Rodriguez should have requested an accomplice witness as a matter of fact instruction regarding Gonzalez. An accomplice as a matter of fact is "[o]ne who participates with the defendant before, during or after commission of the crime for which the defendant is on trial." Zepeda, 819 S.W.2d at 875-76. Turner does not refer to any evidence in the record suggesting that Gonzalez participated in stealing money from Meyers. Rudder testified that Gonzalez knew about some unauthorized checks, but she could not say for sure if he knew that she and Turner were stealing from Meyers. "In order to be an accomplice witness, there must be some evidence of an affirmative act on the witness' part to assist in the commission of the offense." Kunkle v. State, 771 S.W.2d 435, 440 (Tex.Crim.App. 1986). Turner's claim that Rodriguez rendered ineffective assistance of counsel on this point is without merit since Gonzalez is not an accomplice.

Conclusion

We hold that the evidence is legally sufficient to support Turner's conviction on Count III. In addition, Turner's trial counsel, Rodriguez, did not render ineffective assistance of counsel. Therefore, the trial court did not abuse its discretion in denying Turner's motion for new trial. We affirm the judgment of the trial court.