Stephen Bernard Jones v. State

• Court: Court of Appeals of Texas
• Decided: February 5, 2009
• Docket: 02-07-00324-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 2-07-324-CR NO. 2-07-325-CR

STEPHEN BERNARD JONES APPELLANT

V.

THE STATE OF TEXAS STATE

------------

FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

OPINION

A jury convicted Appellant Stephen Bernard Jones of three counts of

making a false statement to obtain property or credit of more than $200,000

in each of two cases.1 Upon his plea of true to habitual allegations, the jury

assessed his punishment at forty-five years’ confinement in the Institutional

Division of the Texas Department of Criminal Justice on each count. The trial

1 … See Tex. Penal Code Ann. § 32.32 (Vernon Supp. 2008). court sentenced him accordingly, ordering the sentences to be served

concurrently.

In three points, Appellant argues that the trial court abused its discretion

by allowing him to represent himself, that his multiple convictions and

sentences under each indictment violate double jeopardy protections, and that

the evidence is insufficient to show the amount of loss. We affirm the trial

court’s judgments as modified.

Background Facts

Appellant was an employee of Legacy Financial Group, a mortgage

company that helps prospective home owners navigate the mortgage loan

process. Appellant submitted uniform residential loan applications for two

separate residential properties, seeking loans in the amounts of $680,000 and

$544,000. Appellant made false statements on the applications, stating that

he owned two fictitious bank accounts. He also submitted another person’s

credit report as his own.

Double Jeopardy

In his second point, Appellant argues that he was denied double jeopardy

protection because he received multiple convictions and punishments under

each indictment, instead of just one conviction and sentence per indictment.

Section 32.32 of the penal code provides in pertinent part,

2 (a) For purposes of this section, “credit” includes:

(1) a loan of money;

...

(7) a mortgage loan.

(b) A person commits an offense if he intentionally or knowingly makes a materially false or misleading written statement to obtain property or credit, including a mortgage loan.

(c) An offense under this section is:

(7) a felony of the first degree if the value of the property or the amount of credit is $200,000 or more.2

Each indictment contains three counts, but all of the counts within each

indictment deal only with a single loan application. The State argues that

because each material false or misleading written statement made by Appellant

in the loan applications was an allowable unit of prosecution, no double

jeopardy violation occurred regarding Appellant’s six convictions and sentences.

Appellant argues that each application is a single unit of prosecution. We hold

that the allowable unit of prosecution is the property or credit sought or

obtained via the false or misleading statement or statements. In this case,

because each application in this case sought different credit, there are two, not

2 … Id.

3 six, allowable units of prosecution.

The State relies on language in Cheney v. State, a case addressing not

the issue before us but whether statutes proscribing felony theft and making

a false statement to obtain property or credit were in pari materia. 3 The Cheney

court provided that “[s]ection 32.32, supra, by its own language, proscribes the

making of written false or misleading statements to obtain property or credit.

It is the act of making such statements that is the gravamen of the offense,”

and also stated that “[t]he offense is complete once the written, deceptive

statement relevant to obtaining property or credit is made, even if the

perpetrator is not successful in obtaining the property or credit as a result of his

written deception.” 4

We note that Cheney was decided twenty years ago, when committing

an offense under section 32.32 was a misdemeanor regardless of the value

involved. 5 In 2001, however, the Texas Legislature amended section 32.32 to

make the degree of the offense (and therefore the potential penalty) dependent

3 … Cheney v. State, 755 S.W.2d 123, 130 (Tex. Crim. App. 1988). 4 … Id. at 129. 5 … Act approved June 14, 1973, 63rd Leg., R.S., ch. 399, 1973 Tex. Gen. Laws 883, 937 (amended 2001) (current version at Tex. Pen. Code Ann. § 32.32).

4 on the value of the loan or credit sought.6 Although the Cheney court pointed

out that proof of the value of the property is a critical factor in the offense of

theft but not required to prove an offense under section 32.32 in effect at that

time,7 under the current statute proscribing the making of a false statement to

obtain property or credit, the value of the property is critical in determining both

the degree of the offense and the penalty range. 8

Additionally, the Cheney court was not faced with the issue before us.

As this court has previously explained,

When discerning the meaning of a statute, we begin with its plain language. We focus our attention on the literal text of the statute in question. If that language is clear and unambiguous, the plain meaning of those words is applied. But if the plain language leads to an absurd result that the legislature could not have possibly intended, or if the language is ambiguous, we may consider extra-textual factors to determine the statute’s meaning. For example, if a statute may be interpreted reasonably in two different ways, a court may consider the consequences of differing interpretations in deciding which interpretation to adopt. If one interpretation yields absurd results while the other interpretation yields no such absurdities, the latter interpretation is preferred.9

6 … Act of May 24, 2001, 77th Leg., R.S., ch. 1245, 2001 Tex. Gen. Laws 2934, 2935 (amended 2007) (current version at Tex. Pen. Code Ann. § 32.32). 7 … Cheney, 755 S.W.2d at 130. 8 … See Tex. Penal Code Ann. § 32.32(c). 9 … Adams v. State, 270 S.W.3d 657, 660 (Tex. App.—Fort Worth, pet. filed) (citations omitted).

5 The State analogizes to the perjury statute in discussing the allowable

unit of prosecution, pointing out that each false statement during a grand jury

proceeding was held to constitute a separate offense in People v. Guppy. 10 We

note that statement is defined for purposes of the penal code perjury chapter

as “any representation of fact” 11 and that monetary value has no connection to

the offense grade or penalty range involved in perjury.12 On the other hand,

statement is not defined in the fraud chapter. 13

But section 32.03 in the fraud chapter provides that “[w]hen amounts are

obtained in violation of this chapter [the fraud chapter, including section 32.32]

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 offense.” 1 4 That is, under

section 32.03, if a defendant successfully obtains a primary and secondary loan

under section 32.32 after submitting a fraudulent document or ten fraudulent

documents containing dozens of “materially false or misleading written

10 … 333 N.E.2d 576, 578–79 (Ill. App. 1975). 11 … Tex. Penal Code Ann. § 37.01(3) (Vernon Supp. 2008). 12 … See id. §§ 37.02–.03 (Vernon 2003). 13 … See id. §§ 32.01–.52 (Vernon 2003 & Supp. 2008). 14 … Id. § 32.03.

6 statement[s],” then the conduct may be considered as one offense and the total

amount received used to determine the grade of offense and therefore the

penalty range. 15 Under the State’s interpretation of the statute at issue,

though, a defendant who lies three times on a document to obtain a single loan

but fails to get the money could be convicted of three offenses and receive

three separate sentences, even though all three lies were focused on getting the

same, single benefit. Such a result would be absurd. 16 We therefore decline

to apply perjury law to this case.

We believe that an offense under current section 32.32 is more analogous

to a theft offense. In theft, the allowable unit of prosecution is the object or

objects stolen.17 The value of the property may be determined by aggregating

the amounts of various items stolen pursuant to one scheme or continuing

course of conduct,18 just like the value of the property sought or obtained in the

15 … See id. §§ 32.03, 32.32(b). 16 … See Adams, 270 S.W.3d at 660. 17 … See Stewart v. State, 44 S.W.3d 582, 588 (Tex. Crim. App. 2001) (“[T]he gravamen of theft is in depriving the true owner of the use, benefit, enjoyment or value of his property, without his consent.”) (quoting McClain v. State, 687 S.W.2d 350, 353 (Tex. Crim. App. 1985)). 18 … Tex. Penal Code Ann. § 31.09 (Vernon 2003).

7 fraud chapter.19

Consequently, we hold that the gravamen, or allowable unit of

prosecution, for the offense of making a false statement to obtain property or

credit is the property or credit sought or obtained pursuant to the false or

misleading statement or statements. We further hold that, here, each false

statement in each case is an alternative manner and means of trying to obtain

the single mortgage loan involved in each case. Therefore each indictment will

support only a single conviction. Because the offenses and sentences are

identical in severity, we modify each judgment to vacate the convictions and

sentences for the second and third counts.20 We address Appellant’s remaining

points only as to the live counts.

Sufficiency of the Evidence

In his third point, Appellant argues that the evidence is insufficient to

show the amount of loss alleged in each indictment. Although he does not

state whether he is arguing that the evidence is legally insufficient or factually

insufficient, he cites cases dealing with both legal and factual sufficiency. In

19 … Id. § 32.03. 20 … See Ex parte Cavazos, 203 S.W.3d 333, 338 & n.8 (Tex. Crim. App. 2006); see also Ex parte Cravens, 805 S.W.2d 790, 791 (Tex. Crim. App. 1991).

8 the interest of justice, therefore, we address his third point under both

standards.

Section 32.32 is an unusual statute because it does not require any harm

to the complainant. The statute does not require that a defendant obtain the

property or credit sought, only that a defendant attempt to obtain such property

or credit through the use of materially false or misleading statements.21 The

amount of property, loan, or credit sought, rather than the amount of loss

suffered by the complainant, determines the severity of the punishment. 22 The

State, therefore, was required to prove in each case only the amount of the

loan sought by Appellant when he made the false statements, not the amount

Appellant received.23 The State proved that Appellant sought property or credit

of more than $200,000 in each case. Viewing all the evidence in the light most

favorable to the prosecution,24 we hold that the evidence is legally sufficient to

support Appellant’s convictions under the first count of each indictment.

21 … See Tex. Penal Code Ann. § 32.32(b). 22 … Id. § 32.32(c); Cheney, 755 S.W.2d at 129. 23 … See Tex. Penal Code Ann. § 32.32(b), (c); Cheney, 755 S.W.2d at 129. 24 … See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (both providing standard of review for legal sufficiency).

9 Viewing all the evidence in a neutral light,25 we also hold that the evidence is

factually sufficient to support his convictions under the first count of each

indictment. We overrule Appellant’s third point.

Self-Representation

In his first point, Appellant argues that the trial court reversibly erred and

abused its discretion in allowing Appellant to represent himself in the joint jury

trial of the two causes without a written waiver of counsel in those causes in

compliance with article 1.051 of the Texas Code of Criminal Procedure.

The record shows that on March 2, 2007 at a pretrial hearing, the trial

court called the original cause numbers and the re-indicted cause numbers,

explaining that 1054498R was the re-indictment of 1005292D and that

1054601R was the re-indictment of 1005291D. All motions filed in the original

cause numbers were specifically carried over to the re-indicted causes.

At the March 2, 2007 hearing, Appellant insisted on dismissing his court-

appointed attorney, Robert Ford, and representing himself. Appellant signed a

written waiver of counsel that same date, after the re-indictments, and both re-

25 … See Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008); Lancon v. State, 253 S.W.3d 699, 704 (Tex. Crim. App. 2008); Watson v. State, 204 S.W.3d 404, 414–15, 417 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 8, 9, 12 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997); Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003) (all providing standard of review for factual sufficiency).

10 indictment numbers are listed at the top of the waiver. Although the waiver

does not specifically track the language of article 1.051(g) of the Texas Code

of Criminal Procedure, 26 it does make clear that Appellant did not want to be

represented by counsel. The trial court asked Appellant his reasons for not

wanting a lawyer and whether he was able to represent himself and went to

great lengths to admonish Appellant orally on the record. Appellant persisted

in demanding to represent himself.

The trial court allowed Appellant to proceed pro se, granting his waiver

of counsel in each case. The trial court nevertheless appointed standby

counsel for Appellant, and in the penalty phase of the trial, Appellant elected

to proceed with counsel.

As the State points out, a defendant is constitutionally and statutorily

entitled to represent himself at trial. 27 The trial court also complied with the

requirement that it advise the defendant of the dangers and disadvantages of

self-representation so that the defendant “knows what he is doing and his

26 … See Tex. Code Crim. Proc. Ann. art. 1.051(g) (Vernon Supp. 2008). The changes between the version of the statute applicable to Appellant and the current statute are immaterial to this appeal; we therefore reference the current statute. 27 … Faretta v. California, 422 U.S. 806, 819–20, 95 S. Ct. 2525, 2533 (1975); Tex. Code Crim. Proc. Ann. art. 1.051(f) (Vernon Supp. 2008).

11 choice will be made with eyes open.” 28 The State correctly argues that a

defendant’s knowing and intelligent choice to represent himself must be

honored.29 The State also correctly argues that article 1.051(g) is not

mandatory and that no writing is required to waive the constitutional right to

counsel.30 No particular form is required to effectively waive counsel, but the

record must reflect that a defendant has intentionally, voluntarily, and with full

knowledge given up his right to be represented by counsel. 31

In this case the oral admonishments and statements by Appellant make

it clear that the trial court complied with the requirements of Faretta and that

Appellant’s waiver was voluntarily, intelligently, and with full understanding

entered on the record. Consequently, we overrule Appellant’s first point.

28 … Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim. App. 1984) (quoting Faretta, 422 U.S. at 835, 95 S. Ct. at 2541). 29 … See Faretta, 422 U.S. at 834, 95 S. Ct. at 2541; Blankenship, 673 S.W.2d at 583. 30 … Tex. Code Crim. Proc. Ann. art. 1.051(g); Burgess v. State, 816 S.W.2d 424, 430–31 (Tex. Crim. App. 1991). 31 … See Faretta, 422 U.S. at 835–36, 95 S. Ct. at 2541; Burgess, 816 S.W.2d at 428–29.

12 Conclusion

Having overruled Appellant’s first and third points, but having sustained

his second point and vacated the convictions and sentences under the second

and third counts of each judgment, we affirm the trial court’s judgments as

modified.

LEE ANN DAUPHINOT JUSTICE

PANEL: LIVINGSTON and DAUPHINOT, JJ.; DIXON W. HOLMAN, J. (Senior Justice, Retired, Sitting by Assignment).

PUBLISH

DELIVERED: February 5, 2009