ACCEPTED 03-14-00584-CR 3906725 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/26/2015 9:29:09 PM JEFFREY D. KYLE CLERK No. 03-14-00584-CR __________________________________________________________ FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS FOR THE THIRD AUSTIN, TEXAS DISTRICT OF TEXAS 1/26/2015 9:29:09 PM __________________________________________________________ JEFFREY D. KYLE Clerk STEWART LINDSAY SHERROD, Appellant
v.
THE STATE OF TEXAS, Appellee __________________________________________________________
On Appeal from the 207th Judicial District Court of Comal County, Texas Cause No. CR2010-105 Honorable Dib Waldrip, District Judge Presiding __________________________________________________________
BRIEF FOR THE STATE __________________________________________________________
Jennifer Tharp Criminal District Attorney
By Joshua D. Presley SBN: 24088254 Assistant District Attorney 150 N. Seguin Avenue, Suite #307 (830) 221-1300 Fax (830) 608-2008 New Braunfels, Texas 78130 E-mail: preslj@co.comal.tx.us Attorney for the State
Oral Argument Is Requested Identity of Parties and Counsel
Attorneys for the Appellant Stewart Lindsay Sherrod
AT TRIAL & ON APPEAL Paul A. Finley 401 Main Plaza, Suite 200 New Braunfels, Texas 78130 Telephone: (830) 625-8026 Facsimile: (830) 625-4433 Email: pfinley@reaganburrus.com
Attorneys for the Appellee, The State of Texas
AT TRIAL Sammy McCrary Chief Felony Prosecutor COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE 150 N. Seguin Avenue, Suite 307 New Braunfels, Texas 78130 Telephone: (830) 221-1300 Facsimile: (830) 608-2008 Email: mccras@co.comal.tx.us
ON APPEAL Joshua D. Presley Assistant District Attorney COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE 150 N. Seguin Avenue, Suite 307 New Braunfels, Texas 78130 Telephone: (830) 221-1300 Facsimile: (830) 608-2008 Email: preslj@co.comal.tx.us
ii Table of Contents
Index of Authorities ................................................................................................. iv
Statement of Facts ......................................................................................................1
The Evidence Was Legally Sufficient to Prove Appellant Committed the Offense of Forgery .........................................................................................4
Summary of the Argument ....................................................................4
Standard of Review................................................................................5
Argument ...............................................................................................8
The Evidence Was Legally Sufficient to Prove Appellant Committed the Offense of Engaging in Organized Criminal Activity ..............................12
Summary of the Argument ..................................................................12
Standard of Review..............................................................................13
Argument .............................................................................................14
Appellant Has Not Preserved Error Related to the Admission of Evidence ........................................................................................................18
Summary of the Argument ..................................................................18
Argument .............................................................................................18
Prayer .......................................................................................................................24
Certificate of Service ...............................................................................................25
Certificate of Compliance ........................................................................................26
iii Index of Authorities Statutes & Rules
Tex. Pen. Code Ann. § 32.21 ................................................................................ 6, 7 Tex. Pen. Code Ann. § 71.02 .................................................................................. 13 Tex. R. App. P. 33.1................................................................................................. 19 Tex. R. App. P. 44.2(b) ............................................................................................ 21
Cases
Barber v. State, 764 S.W.2d 232 (Tex. Crim. App. 1988) ................................13, 14
Casey v. State, 215 S.W.3d 870 (Tex. Crim. App. 2007) ........................................ 21
Ervin v. State, 331 S.W.3d 49 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d)......................................................................................... 5
Geick v. State, 349 S.W.3d 542 (Tex. Crim. App. 2011) .......................................... 6
Gonzales v. State, 685 S.W.2d 47 (Tex. Crim. App. 1985)..................................... 19
Harnett v. State, 38 S.W.3d 650 (Tex. App.—Austin 2000, pet. ref’d) ............................................................................................................19, 22
Jackson v. Virginia, 443 U.S. 307 (1979).............................................................. 5, 7
Jimenez v. State, 804 S.W.2d 334 (Tex. App.—San Antonio 1991, pet. ref’d) ....................................................................................... 5, 7
Johnson v. State, 84 S.W.3d 726 (Tex.App.-Houston [1st Dist.] 2002, pet. ref’d)..................................................................................... 5, 7
Klapesky v. State, 256 S.W.3d 442 (Tex. App.—Austin 2008, pet. ref’d) ....................................................................................................... 20
iv Kiffe v. State, 361 S.W.3d 104 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d)...........................................................5, 6, 7, 9, 11, 12, 17
Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) .......................................... 6
Margraves v. State, 34 S.W.3d 912 (Tex. Crim. App. 2000) ..........................8, 9, 15
Moody v. State, 827 S.W.2d 875 (Tex. Crim. App. 1992) ...................................... 20
Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) ..................................21, 23
Nguyen v. State, 1 S.W.3d 694 (Tex. Crim. App. 1999) ......................................... 13
Pearce v. State, 10-12-00353-CR, 2014 WL 942687 (Tex. App.—Waco Jan. 16, 2014, no pet.) (mem. op., not designated for publication) ....................................................................................... 7
Richards v. State, 912 S.W.2d 374 (Tex.App.—Houston [14th Dist.] 1995, pet. ref’d) .................................................................................... 22
Ross v. State, 9 S.W.3d 878 (Tex. App.—Austin 2000, pet. ref’d) ...................................................................................................................16, 17
Rucker v. State, 13-12-00657-CR, 2013 WL 6730172 (Tex. App.—Corpus Christi Dec. 19, 2013, pet. ref’d) (mem. op., not designated for publication) ..........................................................................21, 22
Scruggs v. State, 782 S.W.2d 499 (Tex. App.—Houston [1st Dist.] 1989, pet. ref’d).................................................................................19, 20
Shores v. State, 54 S.W.3d 456 (Tex. App.—Texarkana 2001, pet. ref’d) ....................................................................................................... 13
Webb v. State, 760 S.W.2d 263 (Tex. Crim. App. 1988) ........................................ 18
Williams v. State, 688 S.W.2d 486 (Tex. Crim. App. 1985) ............................... 7, 11
v Statement of Facts
The Appellant, Stewart Lindsay Sherrod, met Steven Hargrove about six
months before October 8, 2009. RR vol. 3 at 83. Hargrove had been in trouble in
Kingsland for forging checks. Id. at 84. Appellant met Hargrove’s girlfriend, Misti
McMain, a month or two before October 8th. Id. at 83. McMain was a teller at the
Blanco Bank in Bulverde. Id. at 84. McMain testified that Appellant and Hargrove
asked her for an account number so they could make checks. Id. at 72, 76. McMain
said she gave them the account number for HPS Concrete because “it held a lot of
money.” Id. at 72.
Appellant went to a club with his girlfriend, Tammy Schroeder, in the
middle of September, 2009. Id. at 61. While at the club, Appellant played cards
with Patrick Manning. Id. at 66. Appellant observed that Manning appeared to be
drunk. Id. at 89. Later that night in the parking lot, Manning was mugged; someone
hit him in the head and stole his wallet and money. Id. at 61, 66.
Around September and October of 2009, Schroeder was unhappy with
Appellant because he had stolen from her. Id. at 65-66. Nevertheless, she allowed
him to drive her vehicle, a silver-blue BMW X3. Id. at 60-61. On September 28,
2009, Appellant and Hargrove drove to the Blanco Bank in Schroeder’s BMW. Id.
at 84.
1 The teller that day, Travis Walker, knew Hargrove. Id. at 36-37. They had
been in school together, where Hargrove was one grade ahead of Walker. Id.
However, Walker testified that he did not see Hargrove on September 28 th. Id. at
36, 41-42. Walker testified that Appellant passed him a check which appeared to
be from “HPS Concrete” to “Patrick Manning” in the amount of $8,522.53. Id. at
41, 36; CR at 7, 10, 12. Walker also testified that when unknown customers came
through to cash a check, he identified them with their driver’s license. RR vol. 3 at
32-33. After the check was successfully cashed, Appellant said he took at least
$1,200 of the money, despite knowing the check was forged. Id. at 84, 85.
Just over a week later, on October 7th, 2009, McMain and Hargrove came
over to spend the night with Appellant at his girlfriend’s house. Id. at 63. On the
morning of October 8th, as Schroeder was getting ready to go to work, she saw
Appellant and Hargrove outside in the shed. Id. at 64. They had a computer and
printer, and were printing something out. Id.
Later that morning, Appellant and Hargrove drove to the same Blanco Bank
in Bulverde. Id. at 45-46. Although Walker was at the bank, the teller handling
their drive-through lane was Sheri Posey. Id. at 44-46. Appellant was driving a
Ford Explorer, while Hargrove was lying down – out of view – in the backseat. Id.
at 46, 40, 42, 54; State’s Exhibit 9 at 11:59:00. Appellant passed a check to Posey
which purported to be from “Brookshire Brothers, Limited” to “Patrick Manning”
2 in the amount of $7,532.76, along with Patrick Manning’s driver’s license. Id. at
16-17, 45-46, 55; CR at 18, 22. Posey testified that she realized it was the same
people who had already passed a forged check; she informed Walker and her
manager, who told her to stall them. Id. at 46. When Posey asked where Appellant
was employed, he said he worked at Brookshire’s as an electrician. Id. at 47.
Meanwhile, Walker went outside to get in a truck and block Appellant in. Id. at 34.
Detective Gary Edwards responded to the radio call. Id. at 52. When he
arrived, Edwards parked in front of Appellant’s Ford Explorer. Id. at 52-53; State’s
Exhibit 8 at 11:35:25. Edwards ordered Appellant – the driver – out of the car and
onto the ground. Id. at 53. Edwards did not realize Hargrove was lying down out of
view in the backseat. Id. As Edwards handcuffed Appellant on the left side of the
Explorer, Hargrove bolted out of the SUV’s right side and ran up a hill. State’s
Exhibit 8 at 11:35:45; RR vol. 3 at 40. Hargrove was forced to stop fleeing at
gunpoint by a citizen who was a concealed handgun carrier. RR vol. 3 at 54.
Appellant plead guilty to Counts III and IV of the indictment, related to the
passing and making of the Brookshire Brother’s check on October 8, 2009. Id. at
16-17. He pled not guilty to the counts related to making and passing the
September 28th check, and to Count V, the Engaging in Organized Criminal
Activity charge. Id. at 15-16, 17-18. McMain later testified that she pled guilty to a
3 charge of Engaging in Organized Criminal Activity for engaging with Appellant
and Hargrove to commit forgery. Id. at 73.
The Evidence Was Legally Sufficient to Prove Appellant Committed the Offense of Forgery
Because Appellant’s conviction for Forgery by Passing supports his
conviction for Engaging in Organized Criminal Activity, the State will address
Appellant’s second issue first. The following Standard of Review is relevant to
both Appellant’s second and first issue on appeal.
Summary of the Argument
In his second point of error, Appellant contends the evidence was legally and
factually insufficient to prove he committed the offense of Forgery as alleged in
Count I of the indictment. See Brief for Appellant at 12. The State put forth legally
sufficient evidence to prove Appellant’s guilt. The jury could reasonably conclude
that Appellant passed the check on September 28 th based on evidence including
Appellant’s admission he was in the car, that he took at least $1,200 of the $8,000
knowing the check had been forged, direct testimony indicating Appellant – and
not Hargrove, whom the teller would have recognized – passed the check, and the
fact that Appellant passed the later check on October 8th while Hargrove hid in the
4 back seat. Similarly, there was abundant evidence that Appellant knew the check
was forged when he passed it, including the fact that he knew Hargrove was in
trouble for forgery, Appellant used a stolen driver’s license to cash the $8,000
check and McMain’s testimony established that Appellant asked her for the HPS
account number to make the checks. Alternatively, even if Hargrove passed the
check on September 28th as Appellant claimed, the evidence was legally sufficient
to uphold Appellant’s conviction as a party to the offense.
Standard of Review
After the decision of the Court of Criminal Appeals in Brooks v. State, Texas
appellate courts review legal and factual sufficiency challenges in criminal cases
using the same legal sufficiency standard of review. Kiffe v. State, 361 S.W.3d 104,
107 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Ervin v. State, 331
S.W.3d 49, 54 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d)). Evidence is only
insufficient if, when considering all the evidence in the light most favorable to the
verdict, “no rational factfinder could have found each essential element of the
charged offense beyond a reasonable doubt.” Id. (citing Jackson v. Virginia, 443
U.S. 307, 319 (1979)). While viewing the evidence in the light most favorable to
the verdict, evidence can be insufficient in two circumstances: when the record
contains “no evidence, or merely a ‘modicum’ of evidence, probative of an
5 element of the offense” or when “the evidence conclusively establishes a
reasonable doubt.” Id. The evidence may also be insufficient when the acts alleged
do not constitute the offense charged. Id. at 108.
To determine “the essential elements of the crime,” courts will look to “the
hypothetically correct jury charge for the case.” Geick v. State, 349 S.W.3d 542,
545 (Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.
Crim. App. 1997)). The hypothetically correct jury charge is “one that accurately
sets out the law, is authorized by the indictment, does not unnecessarily increase
the State’s burden of proof or unnecessarily restrict the State’s theories of liability,
and adequately describes the particular offense for which the defendant was tried.”
Geick, 349 S.W.3d at 545 (quoting Malik, 953 S.W.2d at 240). When there has
been no notice-based motion to quash, a charging instrument is only required to
allege the statutory elements of the offense. See Geick, 249 S.W.3d at 546.
The elements of forgery are that the defendant forges a writing with intent to
defraud or harm another. Tex. Pen. Code Ann. § 32.21 (West, Westlaw through
2013 Sess.). “Forge” means – among other things – to make a writing so that it
purports:
(i) to be the act of another who did not authorize that act;
(ii) to have been executed at a time or place or in a numbered sequence other than was in fact the case; or
(iii) to be a copy of an original when no such original existed; 6 or to pass such a writing with intent to defraud or harm another. Id. “Intent to
defraud or harm may be inferred from proof the defendant knew the instrument
was forged.” Pearce v. State, 10-12-00353-CR, 2014 WL 942687, at *7 (Tex.
App.—Waco Jan. 16, 2014, no pet.) (mem. op., not designated for publication)
(citing Williams v. State, 688 S.W.2d 486, 488 (Tex. Crim. App. 1985)). “Intent to
defraud or harm may be established by circumstantial evidence.” Id. (citing
Williams, 688 S.W.2d at 488).
Legal sufficiency review “gives full play to the responsibility of the trier of
fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Jackson v. Virginia, 443
U.S. at 319. Reviewing courts determine whether the necessary inferences are
reasonable based on the “combined and cumulative force of the evidence when
viewed in the light most favorable to the verdict.” Kiffe, 361 S.W.3d at 108. Courts
will treat direct and circumstantial evidence equally. Id. “Circumstantial evidence
is as probative as direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt.” Id. Appellate
courts will presume that the factfinder “resolved any conflicting inferences in favor
of the verdict” and defer to that resolution. Id. The reviewing courts will also defer
to “the factfinder’s evaluation of the credibility and the weight of the evidence.” Id.
The factfinder is entitled accept some testimony and reject other testimony, in 7 whole or in part. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000),
abrogated on other grounds by Laster v. State, 275 S.W.3d 512 (Tex. Crim. App.
2009).
Argument
There is more than a modicum of evidence to prove each element of
Appellant’s offense, and no evidence conclusively establishes a reasonable doubt.
See Kiffe, 361 S.W.3d at 107. Furthermore, the acts alleged constitute the offense
of forgery. See id. First, there is legally sufficient evidence indicating Appellant
passed the check on September 28, 2009 as alleged in Count I of the indictment.
Appellant admitted being present in the car when the first check was passed
at the drive-through bank lane on September 28, 2009. RR vol. 3 at 84. Although
in his written statement the Appellant also claimed Hargrove drove the car and
passed the check, the jury was free to believe part of his statement and reject other
parts. Id. at 84, 82, 86 (where officer Steve Simpson noted Appellant changed his
story and lied between giving his statement on video and his later written
statement); see also Margraves, 34 S.W.3d at 919. The car Appellant and
Hargrove used for the September 28th forgery was Appellant’s girlfriend’s BMW
X3, which she allowed Appellant to drive. RR vol. 3 at 60, 84.
Travis Walker – the bank teller to whom the September 28th forgery was
passed – identified Appellant as the driver and passer of the check on that day. Id.
8 at 35-36, 41-42; RR vol. 5 at 12. 1 Additionally, Walker knew Hargrove from
school. RR vol. 3 at 36-37. Walker did not know if Hargrove was in the car on
September 28th. Id. Walker testified that Hargrove could not have been the driver
that day, because Walker would have recognized Hargrove was not “Patrick
Manning” listed on the stolen driver’s license. Id. at 41-42.2
Walker’s assertion that he would have recognized Hargrove is supported by
the facts of the October 8th forgery. Appellant drove the car and passed the check
on that date. Id. at 16-17, 53. Hargrove was hiding in the back seat and fled while
the officer handcuffed Appellant. Id. at 42, 54; State’s Exhibit 9 at 11:59:00 (where
Appellant states Hargrove “was laying in the backseat when [officers] drove up.”).
The jury could reasonably infer Hargrove was hiding to avoid being seen by
Walker, whom he knew would recognize him. RR vol. 3 at 42. The jury could also
infer that because Hargrove had to hide while Appellant passed the check on
October 8th, this same procedure was followed during the earlier September 28th
1 Appellant stresses Detective Simpson’s report, which indicated Walker identified Appellant as a ‘passenger’ of the vehicle on September 28th. Brief for Appellant at 12. However, the Detective emphasized that he might have misunderstood Walker, and that he wrote his report as the “last thing [he] did after the fact.” RR vol. 3 at 91. Likewise, the jury was entitled to believe Walker’s confident identification testimony (see, e.g., id. at 43, 41-42) over what the Detective admitted was a possibly mistaken report written at the end of his investigation and the Detective’s impression of another officer’s report. Id. at 101, 103. 2 Appellant notes the Detective testified he could not make out any person in the photographs of the vehicle on September 28th. Brief for Appellant at 12. However, the Detective was referring to “the photographs [he] had to work with” which were black-and-white and appeared fuzzy; they were not identical to the view Walker would have had. RR vol. 3 at 95, 102-03. Because Walker testified that he could distinguish facial features – he recognized Appellant and would have recognized Hargrove – and because Hargrove hid on October 8th, the jury could infer that Walker had a clearer view of Appellant. See id. at 42. 9 forgery. This is reinforced by the fact that Walker did not see Hargrove when
Appellant passed the check on September 28th, despite the fact that Appellant’s
statement said Hargrove was in the vehicle. When viewed in the light most
favorable to the verdict, there was legally sufficient circumstantial and direct
evidence that Appellant passed the check on September 28th.
Next, there was ample evidence from which the jury could infer Appellant
knew the check he passed on September 28th was forged. In Appellant’s written
statement, he admitted knowing Hargrove was in “some kind of trouble in
Kingsland for forging some checks.” RR vol. 3 at 84. Appellant played cards with
Patrick Manning at the club just before Manning was mugged and his driver’s
license was stolen. Id. at 61, 66. Appellant attempted to use that same driver’s
license when he passed the second forged check on October 8th. Id. at 16-17, 48,
55; RR vol. 5 at 17-22; State’s Exhibit 9 at 11:51:06. Appellant passed the first
$8,000 check made out to “Patrick Manning” on September 28 th using Manning’s
driver’s license. Supra at 8-10; RR vol. 3 at 32-33, 41-42, 84. Appellant had
previously stolen money from his girlfriend. RR vol. 3 at 65-66. Appellant
admitted to taking $1,200 of the $8,000 even after he knew the check was forged.
RR vol. 3 at 84-85.
In such circumstances, the jury reasonably inferred that Appellant knew the
$8,000 check he passed on September 28th with someone else’s stolen driver’s
10 license – while Hargrove, in trouble for forgery, hid in the backseat – was forged.
See Williams, 688 S.W.2d at 488. Over and above that strong circumstantial
evidence, McMain testified that Appellant and Hargrove both pressured her for the
account number of the HPS Concrete business, and that Appellant wanted the
number to make the checks he later passed. See RR vol. 3 at 72, 76.3
Additionally, even if Hargrove had passed the first check as Appellant
claimed, the State included a paragraph on party liability in the charge. CR at 103.
The fact that Appellant encouraged McMain to provide the necessary account
numbers, provided transportation via his girlfriend’s BMW and obtained at least
$1,200 of the funds for his assistance to Hargrove in the September 28 th forgery
would allow for Appellant’s conviction as a party to the offense.
The inferences and conclusions of the jury were reasonable, particularly
given the combined and cumulative force of the evidence. See Kiffe, 361 S.W.3d at
108. When viewed in the light most favorable to the verdict, the evidence at trial
was legally sufficient to show Appellant passed the check on September 28 th
knowing it was forged. The Court should defer to the factfinder’s evaluations of
3 Appellant argues there was no testimony as to when the account number was given. The jury could reasonably infer from McMain’s testimony that Appellant ‘wanted’ the number to make checks because he needed the number before he could make the checks. Id. at 76. It would be nonsensical for Appellant to ‘pressure’ and ‘badger’ McMain for the HPS Concrete account number after he had already succeeded in passing the HPS Concrete check with the account number on it. See id. at 72, 76; CR at 7. 11 credibility and weight of the evidence, as well as their resolution of conflicting
inferences in favor of the verdict. See Kiffe, 361 S.W.3d at 108.
The Evidence Was Legally Sufficient to Prove Appellant Committed the Offense of Engaging in Organized Criminal Activity
In his first issue, Appellant challenges the sufficiency of the evidence to
prove he committed the offense of Engaging in Organized Criminal Activity. Brief
for Appellant at 7. Appellant focuses on McMain’s involvement in the
combination and the element of continuity. When viewed in the light most
favorable to the verdict, there was legally sufficient evidence of each element of
the offense. In its role as the sole judge of the credibility and weight of the
evidence, the jury was free to accept some parts of McMain’s testimony and reject
other parts, especially in light of her entire testimony and circumstantial evidence.
Furthermore, Appellant’s cited case of Ross v. State actually supports the jury’s
reasonable inference of the group’s intent to work together in a continuing course
of criminal activity in the circumstances of Appellant’s case.
12 Standard of Review
To avoid repetition, the aforementioned standard of review (supra at 5-8) for
Appellant’s second issue on appeal applies equally to his first issue. Additionally,
the elements of Engaging in Organized Criminal Activity are that the defendant
“with the intent to establish, maintain, or participate in a combination or in the
profits of a combination” commits one or more of the offenses mentioned in the
statute, including forgery. Tex. Pen. Code Ann. § 71.02 (West, Westlaw through
2013 Sess.).
The critical element in a criminal combination is continuity; that is, “three or
more people agreed to work together in a continuing course of criminal activity.”
Shores v. State, 54 S.W.3d 456, 459 (Tex. App.—Texarkana 2001, pet. ref’d)
(citing Nguyen v. State, 1 S.W.3d 694 (Tex. Crim. App. 1999)). The acts that prove
continuity are not required to be criminal offenses themselves, but may be
preparatory acts in furtherance of the combination. Id. (citing Nguyen, 1 S.W.3d
694). Nguyen cited Barber v. State to illustrate the point. Id. (citing 764 S.W.2d
232 (Tex. Crim. App. 1988)). In Barber, the defendants developed a scheme to
steal oil. Id. The State established the element of “intent to establish, maintain, or
participate in a combination or the profits of a combination” by putting on
evidence of several acts – for example, hiring drivers to transport the oil and
making agreements for the sale of the oil – which in the context of a legitimate
13 business would not constitute evidence of a crime. Id. Such acts were found
sufficient to demonstrate the intent to do more than agree to commit one crime. Id.
When viewed in the light most favorable to the verdict, there was legally
sufficient evidence of each required element of the charge of Engaging in
Organized Criminal Activity. In his first issue, Appellant attempts to show there
was not an agreement among three or more persons by focusing on McMain’s
testimony that once she provided the account number to Appellant and Hargrove,
she told them to “get off [her] back and leave [her] out of it.” Brief for Appellant at
8; but see RR vol. 3 at 72 (where McMain claims she cooperated after they told her
she was “not going to get in any trouble,” and states she chose HPS Concrete
because “it held a lot of money in there”), 73.4
Appellant does not acknowledge that the jury was entitled to accept some
parts of her testimony and reject other parts, especially in light of the fact that
McMain admitted pleading guilty to Engaging in Organized Criminal Activity for
her conduct related to Hargrove, Appellant, and the forgeries. RR vol. 3 at 73; see
4 In his statement of facts, Appellant mentions that McMain testified she said nothing about being involved with Appellant in her written statement to a Texas Ranger. Brief for Appellant at 4. On the stand, McMain explained that the investigator never asked her about Appellant. RR vol. 3 at 75. On redirect, McMain testified to Appellant’s being involved. Id. at 76; see also id. at 73 (where McMain spoke of her plea of guilty to the Engaging charge involving Hargrove and Appellant). 14 also Margraves, 34 S.W.3d at 919. Additionally, contrary to McMain’s testimony,
she stayed at Appellant’s girlfriend’s home with Hargrove and Appellant on the
night of October 7th – over a week after the first forgery, and the night before
Hargrove and Appellant made a second check there and passed it at the bank. RR
vol. 3 at 63. Because McMain provided the account number with access to “a lot of
money” for forging the checks, was still with the group on October 7 th and pled
guilty to the Engaging charge, the jury could reasonably conclude McMain
possessed the intent to work with the group in a continuing course of criminal
activities.
There is likewise legally sufficient evidence to support the continuity
element. McMain testified that Appellant and Hargrove wanted the account
number so they could “make checks,” plural. Id. at 72, 76 (emphasis added). With
the account number provided by McMain, Appellant and Hargrove made and
passed multiple checks using a computer, printer, stolen driver’s license and
different vehicles. Id. at 42, 55, 64, 69, 84, 86. During his arrest, Appellant noted
the computer in the backseat of his Ford Explorer was what Hargrove “prints all”
his checks on. State’s Exhibit 9 at 11:51:55.
The commission of multiple offenses more than a week apart constituted
strong circumstantial evidence of an intention to work together in a continuing
course of criminal activities. As discussed supra (at 8-12) the jury had legally
15 sufficient evidence to support its finding of Appellant’s guilt of Forgery on
September 28, 2009, as alleged in Count I of the indictment.5 Over a week after
Appellant and Hargrove obtained around $8,000 from their September 28th forgery,
the group committed two more forgeries by making and passing another check on
October 8th, 2009. Supra; see also RR vol. 3 at 16-17.
Although Appellant cites Ross v. State for the proposition that the
commission of more than one offense might not be sufficient to support the
continuity element, the facts of that case are readily distinguishable. Brief for
Appellant at 8; see also 9 S.W.3d 878, 882 (Tex. App.—Austin 2000, pet. ref’d).
Unlike Appellant’s case, Ross involved a single criminal episode in which the
defendant and his friends were harassing a woman who had inadvertently cut him
off in traffic. Id. Ross found the offenses committed in a single criminal episode
while driving down I-35 could not support the continuity element: “[t]hat they
ended up committing a series of offenses as the harassment unfolded does not alter
their apparent intent to commit just one assault.” Id. Notably, the Court in Ross
also observed that:
5 Although Appellant states he was acquitted of “the underlying felony charge for the Engaging in Organized Criminal Activity charge” (Brief for Appellant at 7), neither the indictment nor the charge limited the State’s underlying ‘forgery’ charge to the September 28, 2009 Forgery by Making. CR at 9, 108-10. The charge also explained that the State was not bound by the specific date in the indictment. CR at 109; see also Jimenez v. State, 804 S.W.2d 334, 337 (Tex. App.— San Antonio 1991, pet. ref’d) (where the State uses ‘on or about’ language, “conviction may be had upon proof that the offense was committed any time prior to filing the charging instrument that is within the period of limitation.”). 16 [a] case-specific inquiry is required to determine whether a series of offenses committed by the same group indicates that a combination existed. In appropriate circumstances, the commission by the same group of more than one criminal act can, by itself, give rise to a reasonable inference of an intent to engage in a continuing course of criminal activities. If, for example, several people join together to commit a burglary one night, then commit another burglary a week later, an inference of continuity might be raised.
Id. (emphasis added). The hypothetical envisioned in Ross is virtually identical to
the facts of Appellant’s case. As outlined above, Appellant, McMain and Hargrove
worked together to commit a forgery on September 28, 2009, and another forgery a
little more than a week later, on October 8, 2009.
There were ample facts from which the jury could conclude there was an
agreement among Appellant, McMain and Hargrove to “establish, maintain or
participate in a combination or in the profits of a combination.” Additionally,
because the facts in Appellant’s case so closely parallel those Ross suggested
would support a reasonable inference of intent to work together in a continuing
course of criminal activities, it cannot be said that “no rational factfinder could
have found each essential element of the charged offense beyond a reasonable
doubt.” See Kiffe, 361 S.W.3d at 107 (emphasis added). Accordingly, the Court
should defer to the jury’s verdict on this issue.
17 Appellant Has Not Preserved Error Related to the Admission of Evidence
Appellant’s third point alleges that “it was error” for certain evidence to be
included in an exhibit in spite of a motion in limine, and that the trial court erred in
failing to instruct the jury to disregard the evidence. Appellant’s motion in limine
did not preserve error. Appellant made no timely and specific objection when the
evidence was offered, and further affirmatively waived any error by stating “[n]o
objection.” Alternatively, the Court included an instruction in the charge to
disregard the evidence; after examining the record as a whole, there is a fair
assurance any error did not affect Appellant’s substantial rights.
Appellant’s third point of error complains of the admission of evidence of
extraneous offenses and the Court’s refusal to give a subsequent instruction to the
jury to disregard the evidence. However, Appellant’s motion in limine did not
preserve error. “It is axiomatic that motions in limine do not preserve error.” Webb
v. State, 760 S.W.2d 263, 265 (Tex. Crim. App. 1988). “For error to be preserved
with regard to the subject matter of the motion in limine it is absolutely necessary
that an objection be made at the time when the subject is raised during trial.”
18 Gonzales v. State, 685 S.W.2d 47, 50 (Tex. Crim. App. 1985); see also Harnett v.
State, 38 S.W.3d 650, 655 (Tex. App.—Austin 2000, pet. ref’d) (where appellant
only objected to the violation of the motion in limine – and not to the admission of
the evidence – no error was preserved for appeal). In the present case, Appellant
did not object to the admission of State’s Exhibit 9. RR vol. 3 at 80-81; see also
Tex. R. App. P. 33.1.
Appellant cites Scruggs v. State for the proposition that a violation of a
Court’s ruling on a motion in limine can sometimes result in error justifying
reversal. Brief for Appellant at 17. However, Scruggs involved a prosecutor
repeatedly emphasizing inadmissible breath tests in her direct and cross
examinations of witnesses. Scruggs v. State, 782 S.W.2d 499, 502 (Tex. App.—
Houston [1st Dist.] 1989, pet. ref’d). After the defendant had objected and the trial
court thoroughly rebuked and explicitly ordered the prosecutor not to raise the
issue, she once again intentionally attempted to elicit the inadmissible evidence
during her cross examination of the defendant. Id. The defendant again timely
objected and moved for a mistrial. Id. at 501. By contrast, in Appellant’s case, the
complained-of evidence was briefly mentioned by Appellant in an 11-minute video
interview during Appellant’s arrest. See State’s Exhibit 9 at 11:57:40. There was
no objection either before or promptly after State’s Exhibit 9 was admitted. RR
vol. 3 at 81; see also id. at 107 (where extraneous evidence is next discussed
19 outside the presence of the jury). After State’s Exhibit 9 was admitted, the State
was not cautioned by the Court, nor did the State attempt to elicit or mention the
information again in front of the jury. See also id. at 107 (where the State agreed to
an instruction in the charge which prohibited the jury from considering the
extraneous offenses mentioned in State’s Exhibit 9). In the absence of apparent,
intentional and repeated attempts to bring up that particular information, and
absent any objections by Appellant, Scruggs is inapposite. See 782 S.W.2d at 502.
Furthermore, when the State offered the complained-of video into evidence,
Appellant affirmatively stated “[n]o objection.” RR vol. 3 at 81. “When the
defendant affirmatively asserts during trial that he has no objection to the
complained-of evidence, he waives any error in the admission of the evidence.”
Klapesky v. State, 256 S.W.3d 442, 449 (Tex. App.—Austin 2008, pet. ref’d)
(citing Moody v. State, 827 S.W.2d 875, 889 (Tex. Crim. App. 1992). Even if
Appellant had preserved error with his motion in limine, when he affirmatively
stated he had “[n]o objection” to the complained-of evidence, he waived any error
in its admission. The Court should find Appellant has failed to preserve any error
related to the admission of evidence of his prior convictions.
In the alternative, even if error was preserved in the absence of any objection
– and in fact, after Appellant affirmatively stated “[n]o objection” – the erroneous
admission of extraneous offense evidence is nonconstitutional error. Johnson v.
20 State, 84 S.W.3d 726, 729 (Tex.App.-Houston [1st Dist.] 2002, pet. ref’d). Such
error should be disregarded unless it affected Appellant’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 on the jury's verdict.” Rucker v. State,
13-12-00657-CR, 2013 WL 6730172, at *4 (Tex. App.—Corpus Christi Dec. 19,
2013, pet. ref’d) (mem. op., not designated for publication) (citing Casey v. State,
215 S.W.3d 870, 885 (Tex. Crim. App. 2007)). Substantial rights are not affected
if, “after examining the record as a whole, the court has fair assurance that the error
did not influence the jury, or had but a slight effect.” Id. (citing Motilla v. State, 78
S.W.3d 352, 355 (Tex. Crim. App. 2002)).
In Appellant’s case, the extraneous offenses were mentioned only briefly by
Appellant during the 11-minute interview. See State’s Exhibit 9 at 11:57:40.
Furthermore, though the Appellant mentioned his prior offenses of Possession of a
Controlled Substance and Robbery, the offenses were not inflammatory. The only
details of the underlying conduct for the Robbery charge were those given in
Appellant’s minimizing explanation of the offense, in which he claimed it was a
misunderstanding over $10 he retrieved when a gas station attendant would not
turn on his gas pump. Id.
Additionally, the trial court included an express instruction in its charge to
the jury that it was not to consider the extraneous offenses in State’s Exhibit 9 for
21 any purpose. CR at 101 (“Further, regarding the testimony concerning the
[Appellant’s] conviction for any act or acts not charged in this indictment, referred
to in State’s Exhibit 9, shall not be considered by you for any purpose.”). From its
position at trial, having viewed all of the evidence, the trial court clearly thought
such an instruction was sufficient to protect Appellant’s substantial rights. See RR
vol. 3 at 108 (“I think this language will be sufficient”), 110 (trial court refers to
the efficacy of the charge instruction in denying a Appellant’s untimely request –
outside of the presence of the jury – for a verbal instruction and a mistrial); see
also Harnett, 38 S.W.3d at 655 (“[A]ppellant accepted the trial court’s offer to
instruct the jury to disregard the testimony. Normally, such an instruction cures
any error or renders it harmless.”) (citing Richards v. State, 912 S.W.2d 374, 378
(Tex.App.—Houston [14th Dist.] 1995, pet. ref’d)).
The substance of the testimony related to the extraneous offenses was not
inflammatory and the explicit instruction in the charge prevented any substantial
injurious effect or influence on the jury’s verdict. See Rucker, 2013 WL 6730172
at *5 (where the Court presumed the jury followed the trial court’s instructions,
and any error in the admission of evidence did not affect that defendant’s
substantial rights). In light of the overwhelming evidence of Appellant’s guilt,
discussed supra (at 8-17), when the record is viewed as a whole, the Court has a
fair assurance that the error did not influence the jury or had but a slight effect. See
22 Motilla, 78 S.W.3d at 355. Therefore, even if it finds Appellant preserved error in
the admission of evidence for appeal, this Court should affirm the judgment of the
trial court in Appellant’s case.
23 Prayer
Wherefore, premises considered, Appellee respectfully prays that this
Honorable Court of Appeals affirm in all matters the judgment of the trial court in
this case.
By
/s/ Joshua D. Presley Joshua D. Presley SBN: 24088254 Assistant District Attorney 150 N. Seguin Avenue, Ste. #307 New Braunfels, Texas 78130 (830) 221-1300 Fax (830) 608-2008 E-mail: preslj@co.comal.tx.us Attorney for the State
24 Certificate of Service
I, Joshua D. Presley, attorney for the State of Texas, Appellee, hereby certify that a true and correct copy of this Brief for the State has been delivered to Appellant STEWART LINDSAY SHERROD’s attorney of record in this matter:
Paul A. Finley 401 Main Plaza, Suite 200 New Braunfels, Texas 78130 Telephone: (830) 625-8026 Facsimile: (830) 625-4433 Email: pfinley@reaganburrus.com Attorney for Appellant on Appeal
By electronically sending it through efile.txcourts.gov e-filing, this 26th day of January, 2015.
/s/ Joshua D. Presley Joshua D. Presley
25 Certificate of Compliance
I hereby certify, pursuant to Rule 9.4(i)(2)(B) and Rule 9.4(i)(3) of the Texas Rules of Appellate procedure that the instant brief is computer-generated using Microsoft Word and said computer program has identified that there are 5,694 words within the portions of this brief required to be counted by Rule 9.4(i)(1) & (2) of the Texas Rules of Appellate Procedure. The document was prepared in proportionally-spaced typeface using Times New Roman 14 for text and Times New Roman 12 for footnotes.