Dixon
v.
State

Court of Appeals of Texas, Fifth District, DallasFeb 2, 2005
Nos. 05-02-00984-CR, 05-02-00985-CR (Tex. App. Feb. 2, 2005)

Nos. 05-02-00984-CR, 05-02-00985-CR

Opinion issued February 2, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 380th Judicial District Court Collin County, Texas, Trial Court Cause Nos. 380-81535-01 380-81536-01 Affirmed.

Before Chief Justice THOMAS, Justices FITZGERALD and LAGARDE.

The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.


OPINION


Appellant David Wayne Dixon was convicted of two securing execution of a document by deception offenses, in violation of section 32.46 of the Texas Penal Code. See Tex. Pen. Code Ann. § 32.46(a)(1), (b)(5) (Vernon Supp. 2004-05). In this appeal, appellant complains of the legal and factual sufficiency of the evidence to support the convictions. After a jury found appellant guilty, the judge heard punishment evidence and assessed punishment in each case at ten years' confinement in the penitentiary, probated for ten years, and a $5000 fine. Concluding the evidence is both legally and factually sufficient, we affirm.

The trial court also ordered that appellant serve thirty days in jail as a condition of his probation, and required appellant to perform 160 hours of community service.

Background

Appellant was tried before a jury in a joint trial with his wife, Alicia Evans Dixon, for two offenses of securing execution of a document by deception. Appellant testified in his own behalf. Alicia did not testify. A third defendant involved in these offenses, John Webber, a/k/a James Wear, had pleaded guilty prior to the Dixons' trial. Webber was called to testify at trial, but did not appear. The videotaped interviews of appellant, Alicia, and Webber were all admitted into evidence without objection and played for the jury. The evidence presented to the jury showed that appellant and his wife Alicia Dixon owned and operated a swimming pool company, Mercedes Pools, a sole proprietorship. Both their business and personal finances were in dire straits. They were facing foreclosure of their home. The Dixons, together with Webber, whom they had known for about two years, discussed the situation and came to a consensus that to get more business, they needed to improve the image of the pool business by getting newer and better vehicles. To do this, the three devised a scheme where, by use of a cellular phone and the Dixons' mailbox drop address, they created the impression that a legitimate financing company, ASD Financial, existed. Appellant suggested getting a California number for the cellular phone and he recorded a voice mail message for ASD Financial. Alicia and Dawn Hall, a salesperson for the pool business, went to Ewing Buick in Plano to buy a van. Alicia represented to the dealership she had independent financing for the vehicle. After dialing the California number on the cellular phone, which she knew would be answered by John Webber using the alias James Wear or by a voice message that had been recorded by her husband, Alicia handed the phone to the salesperson. Webber, using the name James Wear, confirmed that financing had been preapproved and payment would be forthcoming. A deal was struck and the required paperwork was done. The paperwork included a sales agreement and an application for certificate of title, which are the documents the executions of which were secured by deception. The paperwork contained the name Alicia Evans, not Alicia Dixon. However, Alicia assured the dealership that the finance company knew her and that was not a problem. The paperwork also contained the social security number of a deceased person, not Alicia's correct social security number. The dealership released the van to Alicia, based on the belief the finance company was legitimate and with the assurance payment would be received shortly. Had it known the financing was not legitimate, it would not have released the van. Within two weeks of this transaction, the Dixons and Webber used the same basic routine to secure possession of a Prowler from Carmax in Plano and a Lexus from a Dallas County car dealership. Payment was not made on any of the vehicles. When days went by with no money coming in, efforts were made to contact Alicia and demands were made to either return the vehicles or pay the money. When those efforts were ignored, the Dallas Lexus dealer filed a complaint with the Richardson Police Department. The Richardson police conducted an investigation with the assistance of the Plano Police Department. Plainclothes officers were watching appellant's house when he drove up. They approached him, identified themselves, and asked him about the Lexus. Appellant told them it was in the garage. When appellant opened the garage door by remote, the officers saw the other two vehicles bearing dealer plates. The two dealers whose names were on the plates confirmed that no payments had been received and collections were underway. When the police advised appellant the Lexus was stolen, he closed the garage door, "almost crushing one of the detectives" as the door came down on him. Appellant contended at trial he was nervous and accidentally pushed the remote. Officer MacKenzie testified appellant had to reach for the remote and, in his opinion, the garage door was not closed by accident. While at appellant's house, the officers saw a shadow in the alley. Later, when they asked appellant where his wife was, appellant said she was at the water tower that was adjacent to their house. The officers went to the water tower and found Alicia inside a fenced area "cowering in a corner." Alicia was on the opposite side of the tower from a worker. Appellant testified that Alicia had gone to the tower to smoke with someone she knew because appellant would not let her smoke in the house. MacKenzie testified, however, that Alicia did not appear to be smoking or visiting with anyone. McKenzie questioned the workman and he said she had come in a few minutes before and appeared nervous. Alicia was arrested. Her first statement was that times were bad and they had just gotten into trouble. The officers asked about James Wear. Alicia said Wear was an employee of their pool company whose true name was John Webber. She told the police he was in an office in the garage. When Alicia unlocked the office, Webber was not there. He was, however, found "hiding in a corner" of the backyard. Webber was arrested on outstanding warrants and searched. The search revealed a piece of paper with a telephone number with a 909 area code that was registered to ASD Financial. Essentially, the defense presented was that Webber was the culpable party and the Dixons were simply conned by him, knew nothing about a fraudulent scheme, and believed Webber was a legitimate financier. Appellant denied any knowledge of the scheme, but eventually remembered that he did record a voice message on the cellular telephone purporting to be ASD Financial.

Applicable Law

Appellant challenges both the legal and factual sufficiency of the evidence. The respective standards of review are well known to this Court and to the parties. In a legal sufficiency review this court examines 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 crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Margraves v. State, 34 S.W.3d 912, 917 (Tex. Crim App. 2000). A factual sufficiency review requires this court to examine all the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). To prove appellant committed the charged offenses, the State was required to prove that appellant, with intent to defraud or harm another, by deception caused another to sign or execute any document affecting property or service or the pecuniary interest of anyone. Tex. Pen. Code Ann. § 32.46(a)(1). Intent may be inferred from the acts and conduct of the defendant. See Patrick v. State, 906 S.W.2d 481, 487 (Tex.Crim.App. 1995). The jury was charged on the law of parties.

Analysis

Appellant contends the only evidence that he acted as a party was that he recorded a message on the ASD Financial voice mail. The State disagrees, responding that the evidence is sufficient to show appellant's complicity because appellant's conduct in providing the company with an address, phone and fax numbers, and recording an ASD voice mail message helped created the appearance of the legitimacy of ASD. The State also argues that appellant, knowing of the bad condition of both the business and personal finances, knew about, and actually drove, the vehicles. Webber told the police it was appellant's idea to use the California number and that planning the scheme was a "consensus" among all three of them. Although appellant maintained his innocence, even through the punishment phase, it was within the province of the jury to disbelieve his protestations of innocence and to draw reasonable inferences and logical conclusions of his guilt from the entire circumstances surrounding the offenses. The Dixons' self-serving statements were not credited by the trial court, as evidenced by the judge's statement at the conclusion of the punishment phase, "I don't believe anything that either Mr. Dixon or Mrs. Dixon had to say because they are-they can't be honest with themselves or with the Court." The jury, likewise, was justified in not crediting their claims of innocence. After carefully reviewing all the evidence in these cases under the appropriate standards, we conclude it is both legally and factually sufficient to support the jury's verdicts of guilt. We overrule appellant's two points of error in each case. We affirm the trial court's judgments.