Opinion issued November 1, 2012
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-10-01090-CR NO. 01-10-01091-CR ——————————— ALI YAZDCHI, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court Harris County, Texas Trial Court Case Nos. 1161934 & 1161935 MEMORANDUM OPINION
Appellant, Ali Yazdchi, was charged by indictment with aggregate theft of
over $20,000 and under $100,0001 and with falsely holding himself out as a
lawyer.2 Appellant pleaded not guilty, and a jury found him guilty on both
charges. The trial court assessed punishment at 10 years’ confinement each,
running concurrently. In three issues, appellant argues the trial court erred by (1)
allowing the State to impeach appellant on a previous conviction that had been set
aside; (2) allowing the State to introduce evidence of an agreed final civil
judgment; and (3) not allowing appellant to seek community supervision.
We affirm in each cause.
Background
Jessica Debellefeuille worked at the Penthouse strip club in 2006. Appellant
frequently visited the club. He went by the name of Al Giovanni and would
introduce himself as a lawyer to people he met there. In February of 2006, Jessica
was involved in a serious car accident, requiring hospitalization and follow-up
care. Following the accident, she approached appellant, asking him to help her
with collecting the insurance from the accident. Appellant agreed.
1 See TEX. PENAL CODE ANN. §§ 31.03(a). (e)(5), 31.09 (Vernon 2011). 2 See TEX. PENAL CODE ANN. § 38.122(a) (Vernon 2011). 2 Debellefeuille signed some documents as a result of her agreement with
appellant, though which documents she signed is a matter of dispute. Appellant
subsequently sent letters of representation to Progressive County Mutual Insurance
Company, Debellefeuille’s automotive policy insurer, and Texas Farm Bureau
Insurance, the automotive policy insurer for the other driver in the accident. Both
letters contained letterhead indicating it was sent from “Giovanni and Associates.”
The letters instructed the insurance companies to direct all communications,
payments of medical bills, and settlements through him. Enclosed with both letters
was a power of attorney, purporting to have been signed by appellant and
Debellefeuille.
Ultimately, both insurance companies settled the claims with appellant,
issuing over $50,000 to him. Both companies sent appellant settlement and release
forms to be signed by him and Debellefeuille. Both documents were returned with
signatures for appellant and Debellefeuille. All of the money received from the
insurance companies was deposited into one of appellant’s personal bank accounts.
There is no indication that any of the money was dispersed to Debellefeuille,
and she denies ever receiving any money. Instead, Debellefeuille testified at trial
that appellant repeatedly told her he was not able to collect any money and that she
did not learn about any money being collected until she was contacted by the
district attorney’s office two years later.
3 Appellant was charged by indictment with aggregate theft of over $20,000
and under $100,000 and with falsely holding himself out as a lawyer. Before trial,
appellant filed a motion for community supervision. In the motion, appellant
acknowledged that he had a previous conviction but also represented that it had
been set aside. Prior to trial, the parties discussed the motion with the trial court.
Appellant argued that, because the conviction had been set aside pursuant to
section 20 of article 42.12 of the Texas Code of Criminal Procedure, he should be
allowed to seek community supervision before the jury during the punishment
phase of the trial. The trial court disagreed and determined he was not eligible to
go before the jury to ask for community supervision. The conviction itself,
however, was not admitted in evidence and therefore was not considered by the
jury.
During trial, the State sought to introduce evidence of an agreed final
judgment and permanent injunction entered against appellant in a civil case in
2000. As a part of the agreed final judgment, appellant agreed, among other
things, to not use any name other than Ali Yazdchi in any business transaction and
to not represent, “expressly or by implication, that [appellant] is an attorney.” The
trial court overruled appellant’s objections and admitted the judgment into
evidence.
4 Prior Conviction for Impeachment
In his first issue, appellant argues that the trial court erred by allowing the
State to impeach him on a previous conviction that had been set aside. The State
argues that appellant has not preserved this argument for appeal. We agree.
The State filed a notice of intent to use evidence of a prior conviction
rendered against appellant on November 17, 2000. Appellant argues that trial
court should not have allowed the State to use this prior conviction to impeach him
and that its decision effectively forced appellant not to testify, lest he be impeached
with the conviction. As the State points out, however, there is no evidence that the
trial court ruled on the admissibility of the conviction or that the State ever
attempted to introduce evidence of this prior conviction for any purpose during any
part of the trial.
In order to establish that appellant objected and that the trial court ruled on
the objection, appellant points to the portion of the record where he sought to have
the option of community supervision submitted to the jury during the punishment
hearing. Trial court determined he was not eligible to go before the jury to ask for
community supervision due to that prior conviction. However, the trial court did
not rule on whether the State would be permitted to use this prior conviction for
impeachment purposes.
5 In order to preserve a complaint for review on appeal, a party must make a
timely, specific objection or motion to the trial court that states the grounds for the
ruling sought, and the trial court must rule on the request or objection. TEX. R.
APP. P. 33.1(a); Gutierrez v. State, 36 S.W.3d 509, 511 (Tex. Crim. App. 2001).
Additionally, the objection at trial must comport with the complaint raised on
appeal. See Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005).
Appellant’s only objection about his prior set-aside conviction concerned
whether it prevented him from seeking community supervision. This objection did
not preserve any complaint about whether he could be impeached with the prior
conviction. See id. There was no other objection, ruling, or testimony on this prior
conviction anywhere in the record.3 Accordingly, this complaint has not been
preserved for appeal. See TEX. R. APP. P. 33.1(a).
We overrule appellant’s first issue.
Admissibility of Agreed Judgment
In his second issue, appellant argues the trial court erred by allowing the
State to introduce evidence of an agreed final civil judgment.
3 In his brief on appeal, appellant argues he was not required to testify in order to preserve this issue for appeal, distinguishing Luce v. U.S., 469 U.S. 38, 42, 105 S. Ct. 460, 463 (1984). Regardless of the merits of this argument, he was required to object and to obtain a ruling. See TEX. R. APP. P. 33.1(a). 6 A. Standard of Review
When reviewing a trial court’s decision to admit extraneous-offense
evidence under rule 404(b), or over a Rule 403 objection, an appellate court applies
an abuse-of-discretion standard. See De La Paz v. State, 279 S.W.3d 336, 343
(Tex. Crim. App. 2009); Williamson v. State, 356 S.W.3d 1, 22 (Tex. App.—
Houston [1st Dist.] 2010, pet. ref’d). A trial court abuses its discretion only when
its decision lies outside “the zone of reasonable disagreement.” De La Paz, 279
S.W.3d at 343–44.
B. Analysis
Pursuant to Rule of Evidence 404(b), “[e]vidence of other crimes, wrongs or
acts” may not be admitted during the guilt-innocence phase of trial “to prove the
character of a person in order to show action in conformity therewith.” TEX. R.
EVID. 404(b). It may be admitted, however, “for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” Id. Nonetheless, otherwise admissible evidence “may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice.” TEX. R. EVID. 403.
The State’s charge alleged, in pertinent part, that appellant also went by the
name of Al Giovanni and that he had falsely held himself out as a lawyer to
Debellefeuille. During trial, the State sought to introduce evidence of an agreed
7 final judgment and permanent injunction entered against appellant in a civil case in
2000. The lawsuit identified appellant as “Ali Yazdchi, also known as Al
Giovanni.” As a part of the agreed final judgment, appellant agreed, among other
things, to not use any name other than Ali Yazdchi in any business transaction and
to not represent, “expressly or by implication, that [appellant] is an attorney.”
Appellant argued that the agreed civil judgment served no purpose other
than to show character conformity and that any probative value of the judgment
was outweighed by its prejudicial effect. See TEX. R. EVID. 403, 404(b). The State
argued that the evidence was relevant to show absence of mistake or accident and
that the probative value outweighed any prejudicial effect. See TEX. R. EVID. 403,
404(b).
The trial court overruled appellant’s objections and admitted a redacted
version of the agreed final judgment. On appeal, appellant argues the trial court
abused its discretion by overruling his objections. We do not need to determine
whether the trial court erred in admitting the evidence because we hold that any
error was harmless.
We disregard error in the admission of evidence unless it affects the
defendant’s substantial rights. See 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 v. State, 953 S.W.2d 266, 271 (Tex. Crim.
8 App. 1997); Oprean v. State, 238 S.W.3d 412, 415 (Tex. App.—Houston [1st
Dist.] 2007, pet. ref’d). “A criminal conviction should not be overturned for non-
constitutional error if the appellate court, after examining the record as a whole,
has fair assurance that the error did not influence the jury, or had but a slight
effect.” Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
In performing a harm analysis, we examine the entire record, including all
evidence and testimony as well as all parts of the trial, such as closing statements
and voir dire, when necessary. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim.
App. 2002). We also consider the jury instructions, the State’s theory, any
defensive theories, and whether the State emphasized the alleged error. Id. at 355–
56.
We begin by observing that the unredacted portions of the agreed civil
judgment were read once into the record. The judgment was never mentioned
again in testimony or in closing arguments. Additionally, the jury charge
instructed the jury that they could consider any other alleged offense only for the
purpose of “determining the motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident of the defendant, if any, in
connection with the offense if any, alleged against him in the indictment and for no
other purpose.”
9 Furthermore, there was enough evidence in the record to support the jury’s
finding of guilt on both charges to give this Court fair assurance that the error did
not influence the jury, or had but a slight effect. See Johnson, 967 S.W.2d at 417.
Whether appellant had agreed not to go by another name or to hold himself out as a
lawyer had no bearing on whether he committed theft. Accordingly, any error in
admission of the evidence could not have had more than a slight effect on this
charge.
For the charge of falsely holding himself out as a lawyer, the relevant statute
provides,
A person commits an offense if, with intent to obtain an economic benefit for himself or herself, the person holds himself or herself out as a lawyer, unless he or she is currently licensed to practice law in this state, another state, or a foreign country and is in good standing with the State Bar of Texas and the state bar or licensing authority of any and all other states and foreign countries where licensed.
TEX. PENAL CODE ANN. § 38.122(a) (Vernon 2011). The State charged appellant
with falsely holding himself out as an attorney to Debellefeuille with the intent to
obtain an economic benefit for himself.
Debellefeuille testified repeatedly that appellant identified himself to her and
to anyone he met at the club as a lawyer. His business cards identified himself as
an attorney at law. When Debellefeuille told him about her accident, he told her
that he would “handle the case.”
10 Appellant presented evidence that, after he agreed to help her handle the
case, Debellefeuille had signed a document making appellant her attorney in fact
and acknowledging that appellant was not a licensed attorney. Debellefeuille
denied signing the document, and appellant presented the evidence of a
handwriting expert that identified the signature as authentic.
Even assuming Debellefeuille did sign this document, the undisputed
evidence shows that appellant had previously identified himself to her as a lawyer,
including identifying himself as one on business cards, and said he would handle
the case when she talked to him about the accident.
There was also evidence that appellant advertised in local magazines written
in Persian. The State presented evidence that appellant identified himself as an
“experienced attorney with record of work in all courts.” The advertisement also
said “state and federal court (criminal & civil)” and had bullet points for auto
accidents, personal injury, slip and fall, family law, work-related injuries, medical
malpractice, criminal law cases, bankruptcy, and elimination of credit problems.
Appellant presented testimony of his own translator that denied the
advertisement identified appellant as an attorney. Even without this specific
identification, however, the advertisement strongly suggests, as a whole, that
appellant was identifying himself as a lawyer and soliciting work as a lawyer.
11 The State presented evidence that appellant was not licensed in the State of
Texas and was not in good standing with the State Bar of Texas. Appellant
acknowledged that he was not licensed in Texas. While there was some evidence
suggesting that appellant was licensed in Iran, there is no evidence that he was ever
in good standing with the State Bar of Texas, a critical requirement in order to
prevent the identification of himself as a lawyer from being false. See TEX. PENAL
CODE ANN. § 38.122(a).
We hold that, viewing the record as a whole, any error from the admission of
the agreed civil judgment did not influence the jury, or had but a slight effect. We
overrule appellant’s second issue.
Community Supervision
In his third issue, appellant argues the trial court erred by not allowing him
to seek community supervision.
A. Standard of Review
This issue requires statutory interpretation. Statutory interpretation is a
question of law, which we review de novo. Brooks v. State, 226 S.W.3d 607, 610
(Tex. App.—Houston [1st Dist.] 2007, no pet.). It also requires application of the
law to facts that do not depend on evaluations of credibility or demeanor. We also
apply a de novo review to such matters. Guzman v. State, 955 S.W.2d 85, 89 (Tex.
Crim. App. 1997).
12 B. Analysis
On November 17, 2000, appellant was convicted of aggregate theft in
another case. Punishment was assessed at 10 years’ confinement. The sentence
was suspended, however, and appellant was placed on community supervision for
10 years.
On February 7, 2003, following a motion filed by appellant, the trial court
for that case discharged appellant from community supervision, allowed appellant
to withdraw his plea in the case, dismissed the indictment against appellant, and set
aside the judgment of conviction. See TEX. CODE CRIM. PROC. ANN. art. 42.12,
§ 20(a) (Vernon Supp. 2011).
Before trial, appellant filed a motion for community supervision. In the
motion, appellant acknowledged that he had a previous conviction but also
represented that it had been set aside. Prior to trial, the parties discussed the
motion with the trial court. Appellant argued that, because the conviction had been
set aside pursuant to section 20 of article 42.12 of the Texas Code of Criminal
Procedure, he should be allowed to seek community supervision before the jury
during the punishment phase of the trial. The trial court disagreed and determined
he was not eligible to go before the jury to ask for community supervision.
On appeal, appellant argues that he should have been allowed to have the
issue of community supervision submitted to the jury. Appellant acknowledges
13 that our previous holding in Smiley v. State, 129 S.W.3d 690 (Tex. App.—Houston
[1st Dist.] 2004, no pet.) conflicts with his argument. Accordingly, appellant also
asks us to overrule Smiley.
A defendant is eligible to seek community supervision before a jury “only if
before the trial begins the defendant files a written sworn motion with the judge
that the defendant has not previously been convicted of a felony in this or any other
state, and the jury enters in the verdict a finding that the information in the
defendant’s motion is true.” TEX. CODE CRIM. PROC. ANN. art. 42.12, § 4(e).
Appellant, like the defendant in Smiley, argues that he should have been able to
seek community supervision because his previous conviction had been set aside.
See Smiley, 129 S.W.3d at 693–94.
Pursuant to section 20 of article 42.12 of the Texas Code of Criminal
Procedure, the trial court is required to amend or modify the imposition of
community supervision, including discharge of the community supervision, upon
satisfactory fulfillment of the conditions of community supervision for a certain
period of time. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 20(a). If it does
discharge the defendant from community supervision, the trial court has the
discretion to set aside the verdict and allow the defendant to withdraw his plea. Id.
In that case, the trial court must dismiss the indictment against the defendant, “who
shall thereafter be released from all penalties and disabilities resulting from the
14 offense or crime of which the defendant has been convicted or to which the
defendant has pleaded guilty.” Id. The Court of Criminal Appeals has held that
the words of the statute “are crystal clear.” Cuellar v. State, 70 S.W.3d 815, 819
(Tex. Crim. App. 2002). “If a judge chooses to exercise this judicial clemency
provision, the conviction is wiped away, the indictment dismissed, and the person
is free to walk away from the courtroom ‘released from all penalties and
disabilities’ resulting from the conviction.” Id.
This “judicial clemency” is not absolute, however. Section 20 of article
42.12 also provides that “proof of the conviction or plea of guilty shall be made
known to the judge should the defendant again be convicted of any criminal
offense.” TEX. CODE CRIM. PROC. ANN. art. 42.12, § 20(a)(1). The Court of
Criminal Appeals has held that when this subsection applies, the “previously
dismissed ‘former’ felony conviction will resurrect itself and be made known to
the trial judge.” Cuellar, 70 S.W.3d at 820.
Relying on this language from Cuellar, this Court in Smiley held that a
defendant whose previous conviction has been set aside under section 20 of article
42.12 cannot seek community supervision in the punishment phase of his trial for
any criminal offense. 129 S.W.3d at 695. We reasoned that, because the set-aside
conviction had been “resurrected” at the time of punishment, the defendant could
not argue that he had not been previously convicted of a felony. Id.; see also TEX.
15 CODE CRIM. PROC. ANN. art. 42.12, § 4(e). We concluded by holding that, absent
evidence that he has been exonerated of the prior offense, the defendant is not
eligible to seek community supervision. Smiley, 129 S.W.3d at 695.
Generally, we adhere to our precedents pursuant to the doctrine of stare
decisis, “because it promotes judicial efficiency and consistency, it fosters reliance
on judicial decisions, and contributes to the actual and perceived integrity of the
judicial process.” Riney v. State, 28 S.W.3d 561, 565 (Tex. Crim. App. 2000).
“The interests underlying the doctrine of stare decisis are at their height for judicial
interpretations of legislative enactments upon which parties rely for guidance in
attempting to conform to those legislative enactments.” Busby v. State, 990
S.W.2d 263, 267 (Tex. Crim. App. 1999). “Certainly when a legislature reenacts a
law using the same terms that have been judicially construed in a particular
manner, one may reasonably infer that the legislature approved of the judicial
interpretation.” State v. Medrano, 67 S.W.3d 892, 902 (Tex. Crim. App. 2002).
We issued Smiley in 2004. Since that time, the Texas Legislature has
amended subsection 20(a) to article 42.12 twice. Act of May 25, 2011, 82d Leg.,
R.S. ch. 961, § 2, 2011 Tex. Gen. Laws 2414, 2415 (West); Act of May 21, 2007,
80th Leg., R.S., ch. 1205, § 6.20, 2007 Tex. Gen. Laws 4078, 4080 (West). None
of those changes addressed the portion of the statute that Smiley interpreted. Id.
16 Accordingly, under the principle of stare decisis, we may reasonably infer that the
legislature has approved of our interpretation. See Medrano, 67 S.W.3d at 902.
Similarly, in Samaniego, the trial court refused to instruct the jury on the
issue of community supervision after evidence had been introduced that his
previous conviction had been set aside pursuant to the predecessor to section 20 of
article 42.12. Samaniego v. State, 647 S.W.2d 762, 763 (Tex. App.—Austin 1983,
no writ). The Austin Court of Appeals held that the trial court did not err in
refusing to instruct the jury on community supervision. Id. at 764. The pertinent
language in the predecessor to section 20 of article 42.12 is substantially similar to
the current provision. See id. Accordingly, it can be reasonably inferred that the
Texas Legislature has been aware of how section 20 has been interpreted since at
least 1983 and has approved of this interpretation. See Medrano, 67 S.W.3d at
902.
We further note that Samaniego relied, in part, on Taylor, an earlier Court of
Criminal Appeals case. Samaniego, 647 S.W.2d at 764 (citing Taylor v. State, 612
S.W.2d 566 (Tex. Crim. App. 1981)). In Taylor, the defendant had been
previously convicted in Minnesota. 612 S.W.2d at 570. That conviction was
subsequently set aside in an “Order of Discharge and Restoration of Civil Rights.”
Id. The defendant argued that “the order, discharging him from penal control,
restoring all of his civil rights, and setting aside and nullifying his conviction [was]
17 the equivalent of a full pardon.” Id. at 570–71. The Court of Criminal Appeals
disagreed, holding that even if the order was “a full pardon, [the defendant’s]
contention still would be without merit.” Id. at 571. Instead, a pardon would allow
him to seek community supervision only if there was an express finding of actual
innocence. Id. (citing Watkins v. State, 572 S.W.2d 339 (Tex. Crim. App. 1978));
see also Smiley, 129 S.W.3d at 695 (citing Watkins for same holding).
Under the principle of stare decisis, we decline appellant’s request to
overrule Smiley. Based on Smiley, we hold that the trial court did not err by
refusing to allow the issue of community supervision to be considered by the jury.
129 S.W.3d at 693–96.
We overrule appellant’s third issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley Justice
Panel consists of Justices Higley, Sharp, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).