Caldwell, Carey Bernard AKA Hasan, Bernard Talib Din v. State

• Court: Court of Appeals of Texas
• Decided: August 21, 2003
• Docket: 14-01-00774-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed August 21, 2003

Affirmed and Memorandum Opinion filed August 21, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-01-00774-CR

CAREY BERNARD CALDWELL A.K.A. BERNARD TALIB DIN HASAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 856,214

M E M O R A N D U M   O P I N I O N

Appellant, Carey Bernard Caldwell, a.k.a. Bernard Talib Din Hasan, was convicted by a jury of aggregate theft and sentenced to fifty-five years= imprisonment.  In four points of error, appellant claims (1) the evidence is legally and factually insufficient, (2) the trial court erred in excluding certain cross-examination testimony, and (3) the trial court abused its discretion in denying appellant=s motion for new trial without a hearing.  We affirm.

Background

Appellant and his co-defendant wife, Maria Elena Gonzalez, owned and operated TDH Investments, Unlimited, which provided investment opportunities and advice to the Hispanic community.  Investors were grouped into Acartels@ that pooled their money.  Each individual was required to invest a minimum of $5000.00.  Originally, the cartels invested in real estate; however, the focus eventually changed to include international investment programs.  One such program was trading rice for diamonds.

The Arice for diamonds@ idea purported to pool investors= money together in order to purchase large amounts of rice on the international market.  It would then be sold to countries needing food in exchange for diamonds.  Appellant created TDH, International in order to conduct these oversees exchanges.  In addition, he created and served as president of World Resources Management, an Antiguan corporation that later became known as Unalat.  Two separate Antiguan bank accounts were opened at American International Bank (AIB) and Antigua Overseas Bank.  Investor monies were deposited into the Antiguan bank accounts, the records of which were unavailable at trial.  However, records from Bank One in Houston  indicated that TDH received wire transfers from the Antiguan banks and eventually TDH borrowed against the remaining money at AIB.

In 1997, several of the investors unsuccessfully sought to retrieve their Aearnings@ from appellant.  A civil suit resulted.  The Harris County District Attorney=s Office began investigating appellant and, in February 1998, seized records at TDH=s office, which subsequently closed to the public.  The records contained no evidence of any Arice for diamonds@ purchases.  The indictment named 58 complainants and charged appellant with theft by deception.  At trial, the jury charge included only nine complainants and specifically accused appellant of aggregate theft by deception, Aby promising performance that affected the judgment of the complainants in the transaction which the [appellant] did not intend to perform and/or which the defendant knew would not be performed.@  The State=s theory of the case was that appellant promised the complainants that their investments would fund a Arice for diamonds@ trade and had complainants known their money would not go towards these investments, they would not have given money to appellant.  A jury found appellant guilty and sentenced him to fifty-five years= imprisonment.  This appeal followed. 

Legal and Factual Sufficiency

In his first and second points of error, appellant contends that the evidence is legally and factually insufficient to support his conviction.  Specifically, he contends there is insufficient evidence to prove the complainants= judgments were affected by any promise made by appellant.

In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict.  See Jackson v. Virginia, 443 U.S. 307, 319 (1979).  We accord great deference Ato the responsibility of the trier of fact [to fairly] resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.@  Id. at 319.  We presume that any conflicting inferences from the evidence were resolved by the jury in favor of the prosecution, and we defer to that resolution.  Id. at 326.  In our review, we determine only whether Aany rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.@  Id. at 319.

The essential elements of the felony offense of aggregate theft are found in section 31.03(a) of the Texas Penal Code, which provides that a person commits an offense Aif he unlawfully appropriates property with intent to deprive the owner of the property.@  Tex. Pen. Code Ann. ' 31.03(a) (Vernon Supp. 2002).  Appropriation of property is unlawful if it Ais without the owner=s effective consent.@  Tex. Pen. Code Ann. ' 31.03(b)(1) (Vernon Supp. 2002).  AConsent@ is not effective if it is induced by deception.  See Tex. Pen. Code Ann. ' 31.01(3)(A) (Vernon Supp. 2002).  Deception means promising performance that the actor does not intend to perform or knows will not be performed.  Tex. Pen. Code Ann. ' 31.01(1)(E) (Vernon Supp. 2002).  Failure to perform the promise without other evidence of intent or knowledge is not sufficient proof that the actor did not intend to perform or knew the promise would not be performed.  Id.  Criminal intent may be inferred from surrounding circumstances.  Coronado v. State, 509 S.W.2d 373, 374 (Tex. Crim. App. 1974). 

Employing our deferential standard of review, we conclude that a rational trier of fact could have found beyond a reasonable doubt that appellant committed the offense alleged in his felony indictment.  The nine complainants testified in great detail concerning their dealings and transactions with appellant.  Appellant promised all nine complainants that their money would be invested in import/export trading accounts.  Specifically, they were told that it would be utilized to buy rice and/or grain that would later be exchanged on the international market for diamonds and gold.  The trading accounts were to be established and maintained by Unalat, which appellant represented as an Ainternational business corporation@ located in Antigua.  The complainants made payments directly to Unalat while being unaware that appellant owned and operated it.  The complainants invested amounts ranging from $5,000 to over $97,000, which represented many of their life savings and death benefits of loved ones.  Appellant promised high rates of return and repeatedly persuaded the complainants to not pull their money out of the investment accounts by convincing them it would result in high tax consequences.  Each complainant testified that had he known his money was not being used in the Arice for diamonds@ program he would not have invested with appellant.

The complainants eventually became aware of the civil lawsuit against and criminal investigation of appellant.  Through periodic account statements, appellant continued to represent that the investments were earning significant profits, which the complainants never actually received.  As concern about the scheme spread, investors began to seek repayment on their accounts.  Appellant refused.  First, appellant avoided phone calls and refused to meet with the complainants.  Second, appellant persuaded the complainants not to seek repayment or join the civil lawsuit.  If they did so, appellant claimed they would be the last to receive payouts and most of their money would be spent on lawyers.  Finally, appellant sent a letter to investors claiming that the Antiguan trading partner, Unalat, was the source of the repayment delays.  He failed to disclose, however, that he founded and served as president of Unalat.  Only one complainant, Mendieta, ever received any payout and he recouped only $10,000 of his $40,000 investment.

Bank account records seized from TDH offices revealed that between 1994 and 1998, over $3 million of investors= money had been deposited or transferred to the Antiguan bank accounts.  Purportedly, this was necessary to participate in the Arice for diamonds@ exchange.  However, the records did not indicate that any such transactions had taken place.  To the contrary, the records showed appellant transferred approximately $1.3 million back into Houston bank accounts for his personal use.  The records further indicated that TDH took out loans against the Antiguan accounts and that the loan proceeds were subsequently wired back to Houston for appellant=s use.

David Pilant, a Harris County fraud examiner, testified that such a set up constituted a standard pyramid scheme that could continue for years.  As long as individuals continued to invest, it would appear on paper that everyone was earning large profits.  However, when money ceased to come in and people began to pull their money out, the scheme would fail.

All of the complaining witnesses testified that they had paid appellant based on his assurances that he would grow their investment money.  Only one of the complainants ever received a payout, the remainder received nothing from appellant and there is no indication that he ever intended to return anything.  Based on the foregoing evidence of the acts, words, and conduct of appellant and the surrounding circumstances, a rational trier of fact could have found beyond a reasonable doubt that appellant had the intent to unlawfully deprive each complainant of the money he or she invested with him at the time the money was invested.  Accordingly, the evidence was legally sufficient to support appellant=s conviction, and his first point of error is overruled. 

We conduct a factual sufficiency review by asking whether a neutral review of all the evidence demonstrates the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  We may set aside the jury=s verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).  Although we review the fact finder=s weighing of the evidence, and we are authorized to disagree with the fact finder=s determination, our evaluation should not substantially intrude upon the fact finder=s role as the sole judge of the weight and credibility given to witness testimony.  Johnson, 23 S.W.3d at 7.  In particular, we must defer to the jury=s determination concerning what weight to give contradictory testimonial evidence, because resolution often turns on an evaluation of credibility and demeanor, an evaluation better suited for jurors who were in attendance when the testimony was delivered. Id. at 8.  A proper factual sufficiency review Amust include a discussion of the most important and relevant evidence that supports the appellant=s complaint on appeal.@  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

Appellant points to defense witness testimony that allegedly contradicts the complainants= claims.  Nine of the eleven defense witnesses were investors, who, the appellant argues, did not believe they had been deceived.  Specifically, appellant points to the testimony of four defense witnesses who were originally named as complainants in the indictment: Sara Morrell, Maria Almanza, Erasto Almanza, and Homer Cuellar.  Appellant claims their testimony demonstrates that the investors had not been deceived, but rather demonstrated a rational understanding of the agreements.  That four non-complaining witnesses did not believe they were deceived is no evidence that the complainants were not deceived.  Furthermore, the weight to be given conflicting testimony lies within the sole province of the jury, and the reviewing court must show deference to the jury=s determination.  See Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). 

Although appellant does not include any reference to documentary evidence in his claim of factual insufficiency, we find it necessary to address some of the defense trial exhibits.  The State seized all records from appellant=s office and claimed that they contained no evidence of a Arice for diamonds@ swap.  While we agree that there is no evidence that appellant ever actually purchased any rice or diamonds as promised to complainants, the documentary evidence did include several items making reference to the International Diamond Cartel (IDC).  In July 1993, after attending a National Business Group meeting, appellant wrote to Melvin Ford of IDC, expressing an interest in purchasing diamonds.  Ford responded to this correspondence indicating that the African company involved had already entered into an exclusive arrangement with an Israeli company.  The documents also contained an IDC training manual detailing the purchasing process, which appellant used.  An order form to receive additional training manuals contained the address of Anderson, Armstrong & Fowler in Philadelphia, Pennsylvania. 

Other records seized included correspondence with the Antiguan banks.  These records indicate that in 1994, appellant opened at least four Arice swap@ and two Amixed@ accounts with deposits totaling $124,000.  In 1995, appellant opened eight more Arice swap@ and twelve Aprecious metal@ accounts.  Other than the transfers back to Houston, there is no further evidence indicating whether any actual commodity purchases took place.

The documentary evidence also showed appellant attended a second International Trade Conference in November 1995.  Furthermore, notes and contracts indicated that at least two of appellant=s employees were researching the import-export business.

Finally, we note that the State failed to produce documentary evidence showing what happened to the money once it was transferred to the Antiguan bank.  However, it is clear that large amounts of the overseas deposits were both borrowed against and transferred back to Houston for appellant=s use.  The State=s fraud investigator indicated that this constitutes a classic pyramid scheme.  Furthermore, appellant made false representations to the complainants regarding the investments.  Taking the evidence as a whole and viewing it in a neutral light, we cannot say the jury=s verdict was clearly wrong or manifestly unjust.  We overrule appellant=s second point of error.

Exclusion of Evidence

Appellant contends in his third point of error that the trial court erred in refusing to allow appellant to cross-examine the complaining witnesses about how he allegedly deceived them or what promises he made to them that he failed to perform.  Specifically, appellant contends that he should have been allowed to question witnesses about Awhat promises had been made to the complainants at the time they gave over their money, at what point in the transaction they thought he had appropriated money, or whether appellant stole money from them.@

In order for a complaint concerning the exclusion of evidence to be considered by an appellate court, the record must show what the excluded testimony would have been.  Stewart v. State, 686 S.W.2d 118, 122 (Tex. Crim. App. 1984); Oldham v. State, 5 S.W.3d 840 (Tex. App.CHouston [14th Dist.] 1999, pet ref=d).  Absent a showing of what such testimony would have been, or an offer of a statement concerning what the excluded evidence would show, nothing is presented for review.  Stewart, 686 S.W.2d at 122.  The record before us contains no evidence of what the excluded testimony would have been, much less what it would have shown.  Consequently, nothing is presented for our review.  This point of error is overruled.

Motion for New Trial

Appellant claims in his fourth point of error that the trial court abused its discretion by denying his motion for new trial without holding a hearing.  Appellant alleged in his motion that the jurors improperly assessed punishment by basing it on the number of complainants listed in the original indictment. 

The right to a hearing on a motion for new trial is not an absolute right.  Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993).  As a prerequisite to obtaining a hearing, motions for new trial must be supported by affidavit, either of the accused or someone else specifically showing the truth of the grounds of attack.  Id. at 816.  Further, a hearing is not required when the matters raised in the motion for new trial are subject to being determined from the record.  Id.    

Jury misconduct is one of several bases on which a motion for new trial may be granted.  See Tex. R. App. P. 21.3(c),(g).   A movant is entitled to a hearing on the motion for a new trial when the affidavit demonstrates that reasonable grounds exist for believing that jury misconduct occurred.  See McIntire v. State, 698 S.W.2d 652, 658 (Tex. Crim. App. 1985).

Here, stand-by trial counsel stated in his affidavit that members of the jury told him that they had assessed punishment based on the number of complainants originally named in the indictment.  The jury requested the indictment from the trial judge, who informed the jury that it was not in evidence.  In the absence of the actual indictment, the jury settled on 55 as the number of complainants, although the actual number was 58 and only nine of those were presented at trial.  Stand-by counsel argued that this information showed the jury Ahad completely ignored the Court=s instructions about disregarding the indictment as evidence and not deciding [appellant=s] punishment by lot or chance or matters not in evidence.@

Based on this information, the trial court did not abuse its discretion by not granting a hearing on appellant=s motion for new trial.  The matters raised in the motion were discernible from the record.  The trial court had all the available information before it to make a determination whether the jury improperly came to its verdict by lot. The trial court is precluded from hearing testimony or affidavits of jury members regarding deliberations.  Tex. R. Evid. 606(b).  By generally prohibiting jurors from testifying as to matters and statements occurring during deliberations, rule 606(b) makes proving jury misconduct more difficult than under the prior rules.  Hicks v. State, 15 S.W.3d 626, 630 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  Proof of jury misconduct may be proved by other means, such as through the testimony of a non-juror with personal knowledge of the misconduct.  Id. (citing Mayo v. State, 708 S.W.2d 854, 856 (Tex. Crim. App. 1986)). 

Stand-by counsel=s affidavit contained three primary pieces of evidenceCthe hearsay statements of jurors, the jury=s request for the indictment, and the actual sentence.  The first of these, the hearsay statements, would be inadmissible under 606(b) and as hearsay.  The allegations in a motion for new trial must be proved by competent evidence, which must be received by the court before it can be considered.  Lincicome v. State, 3 S.W.3d 644, 646 (Tex. App.CAmarillo 1999, no pet.).  The trial court could not consider inadmissable jury statements presented through a hearsay affidavit.  See id. at 647.  Furthermore, it could not hear direct testimony of the jurors regarding whether they decided the verdict by lot.  See Hines v. State, 3 S.W.3d 618, 621 (Tex. App.CTexarkana 1999, pet. ref=d). 

This leaves the jury=s request for the indictment and the actual sentence as the only admissible evidence available to determine whether jury misconduct occurred.  A trial court does not abuse its discretion in refusing to hold a motion-for-new-trial hearing when the affidavits do not supply reasonable grounds entitling the accused to the relief sought.  King v. State, 29 S.W.3d 556, 569 (Tex. Crim. App. 2000).  The evidence presented by appellant did not entitle him to a hearing because there was no other admissible evidence available to the trial court.  The jury request and sentence alone do not support a conclusion that the jury came to its punishment decision by lot or quotient.  In the absence of more evidence, the trial court acted within its discretion in not holding a hearing.

Appellant=s fourth point of error is overruled and the judgment of the trial court is affirmed.

/s/        Leslie Brock Yates

Justice

Judgment rendered and Opinion filed August 21, 2003.

Panel consists of Justices Yates, Anderson, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).