King v. State

17 S.W.3d 7, 2000 Tex. App. LEXIS 2233, 2000 WL 64106
CourtCourt of Appeals of Texas
DecidedApril 6, 2000
Docket14-99-00017-CR
StatusPublished
Cited by174 cases

This text of 17 S.W.3d 7 (King v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
King v. State, 17 S.W.3d 7, 2000 Tex. App. LEXIS 2233, 2000 WL 64106 (Tex. Ct. App. 2000).

Opinions

OPINION

KEM THOMPSON FROST, Justice.

Appellant, Clarence Laverne King, was indicted for the first degree felony offense of aggregate theft. See Tex. Penal Code Ann. §§ 31.03, 31.09 (Vernon 1994). After pleading not guilty, he was tried before a jury and found guilty. The jury asséssed a $10,000 fine and sentenced Appellant to sixteen years’ imprisonment in the Institutional Division of the Texas Department of Criminal Justice. See Téx Penal Code Ann. ■§ 12.32 (Vernon 1994). On appeal to this court, Appellant assigns twelve interrelated points of error, contending that he is entitled to an acquittal or new trial because (1) the evidence was legally and factually insufficient to prove beyond a reasonable doubt that he committed the offense and that the offense occurred within the applicable statute of limitations, (2) the trial court erred in denying his motion to sever his trial from the trial of his co-defendant, (3) the trial court’s comments to the venire members regarding the presumption of innocence were erroneous and denied him due process of law and a fair trial, (4) the trial court erred in restricting his cross-examination of a witness, (5) the trial court erred in failing to instruct the jury on the statute of limitations and a lesser included offense of theft, and (6) the trial court erred in restricting his voir dire examination to the extent that it denied his intelligent exercise of peremptory challenges and denied him effective assistance of counsel. We affirm.

Background

Appellant and his long time business associate, Frank Ragan, operated a business known as Investors Portfolio International Corporation (“IPIC”). The purported objective of the business was to assist start-up business ventures in obtaining financing. Appellant and Ragan lured potential clients to enter into contracts by promising to prepare and present portfolios of their start-up businesses to wealthy investors who, in turn, were to provide the funds to finance the new ventures. The start-up ventures would pay IPIC substantial fees up front for obtaining the financing.

The following complainants paid IPIC substantial sums to obtain financing for their respective business .ventures:

• Michael Mounce paid $93,475 to IPIC in order to obtain $6 million in financing for his new computer software business.
• Paul Buske, who was associated with Mounce, was also beginning a new business and paid IPIC $10,000 to obtain financing.
• David Heermans and Sami El Hage planned to launch a new optometry business. Heermans paid $164,780 to IPIC, with the expectation of receiving approximately $8 million in financing.
• James Nielson, who wanted to start a new oil and gas exploration business, paid IPIC $116,225 to obtain $40-50 million financing for his venture.

Despite receiving substantial fees, IPIC never contacted any investors on behalf of Mounce, Buske, Heermans, or Nielson, nor did the company ever obtain any financing from any investor to benefit any of their prospective business ventures. Appellant and Ragan used all of the money the complainants paid to IPIC to purchase luxury items for themselves and to pay other [13]*13personal expenses. Of the $384,480 collected from the four complainants, Appellant spent approximately $275,513.57 solely on personal items and expenses, including personal credit card debt. Ragan spent the balance of the money on personal expenditures.

Statute of Limitations

We begin by addressing Appellant’s third point of error in which he contends that the evidence is legally insufficient to prove beyond a reasonable doubt that the offense occurred within the applicable statute of limitations.

Appellant was indicted for the felony offense of aggregate theft. See Tex. Penal Code Ann. § 31.09 (Vernon 1994). The applicable statute of limitations provides that an indictment against an accused for this offense must be presented within five years from the date of the commission of the offense. See Tex.Code Crim. Proc. Ann. art. 12.01(4)(A) (Vernon Supp.1999). For the single offense of aggregate theft, the combination of multiple offenses of theft arising from one scheme or continuing course of conduct, the statute of limitations does not begin to run until the date of the commission of the final incident of theft. See Graves v. State, 795 S.W.2d 185, 186-87 (Tex.Crim.App.1990); Vincent v. State, 945 S.W.2d 348, 350 (Tex.App.-Houston [1st Dist.] 1997, pet. refd); Ex parte Howlett, 900 S.W.2d 937, 938 (TexApp.-Eastland 1995, pet. ref'd).

The record shows that Appellant completed the final incident of theft arising from the single scheme or continuing course of conduct during 1993. The felony indictment against him was presented on April 23, 1997, well within the five-year statute of limitations. Point of error three is overruled.

Legal Sufficiency of the Evidence

In his second and third points of error, Appellant contends that the evidence is legally and factually insufficient to support his conviction.

In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.1996). We accord great deference “to 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. (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). 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 n. 13 (quoting Jackson, 443 U.S. at 326, 99 S.Ct. at 2793). In our review, we determine only whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson, 443 U.S. at 319, 99 S.Ct. at 2789) (emphasis in original).

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 “if he unlawfully appropriates property with intent to the deprive the owner of the property.” Tex. Penal Code Ann. § 31.03(a) (Vernon 1994). Appropriation of property is unlawful if it “is without the owner’s effective consent.” Tex. Penal Code Ann. § 31.03(b)(1) (Vernon 1994). Further, where “amounts are obtained [by theft] pursuant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in determining the grade of the offense.” Tex. Penal Code Ann. § 31.09 (Vernon 1994).

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Bluebook (online)
17 S.W.3d 7, 2000 Tex. App. LEXIS 2233, 2000 WL 64106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/king-v-state-texapp-2000.