Affirmed as Modified and Opinion Filed August 22, 2024
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00621-CR No. 05-22-00622-CR No. 05-22-00623-CR
WILSON ALEJANDRO MONTOYA, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause Nos. F-1900779-I, F-1900780-I, F-1900781-I
MEMORANDUM OPINION Before Justices Smith, Miskel, and Breedlove Opinion by Justice Miskel Wilson Alejandro Montoya appeals the trial court’s judgments convicting him
of:
theft of property with a value of $300,000 or more (appellate cause no. 05-22-00621-CR and trial court cause no. F-1900780-I),
money laundering where the value of the funds was $300,000 or more (appellate cause no. 05-22-00622-CR and trial court cause no. F-1900781-I), and
securities fraud involving an amount of $100,000 or more (appellate cause no. 05-22-00623-CR and trial court cause no. F-1900779-I). Montoya pleaded guilty to the jury for the offense of securities fraud and not guilty
to the offenses of theft and money laundering. The jury found Montoya guilty of all
three offenses and assessed his punishment at forty years of imprisonment for each
offense. His sentences were ordered to be served concurrently. Also, the trial court
ordered that Montoya pay restitution in the total amount of $587,595.51 for all three
cases.
Montoya raises three issues on appeal, arguing that: (1) his plea of guilty to
the offense of securities fraud was not knowing and voluntary; (2) the evidence is
insufficient to support his conviction for theft; and (3) the evidence is insufficient to
support his conviction for money laundering.
The State raises a cross issue, arguing that the trial court erred when it assessed
costs in all three of the judgments because Montoya was convicted of more than two
offenses in a single criminal trial. The State requests that we delete the assessment
of court costs from the theft and securities-fraud judgments and correct the amount
of the costs assessed in the money-laundering judgment to match the amount stated
in the bill of costs, which is greater than the amount specified in the money-
laundering judgment.
We conclude that Montoya has not shown that his guilty plea to the jury for
the offense of securities fraud was not made knowingly and voluntarily because his
trial counsel gave him erroneous legal advice that amounted to ineffective assistance
of counsel. Also, we conclude that the evidence is sufficient to support his
–2– convictions for theft and money laundering. Further, we conclude that the trial court
erred when it assessed costs in all three judgments and signed judgments with errors
in them. The trial court’s judgments are affirmed as modified.
I. Factual and Procedural Background
Montoya was born and raised in Santiago, Chile, but moved to the United
States in 1996. Among several other jobs, Montoya worked as a pastor in Texas,
and he claimed he began working as an executive consultant selling electricity for
an energy company in 2009. At some point, Montoya claimed that he started making
real estate investments and began getting other people to invest. These investors
were obtained through church connections and word of mouth. Investors were
provided with brochures and post-dated checks as security for their investment, and
investment contracts were signed before a notary public.1 After initially investing,
some investors made additional investments and some “reinvested” the proceeds
from their initial investment.
Angela Cole, the assistant director of the enforcement division of the Texas
State Securities Board, was assigned to review a complaint concerning Montoya’s
activities. Through interviews and the review of the records of various financial
institutions, Assistant Director Cole found several additional individuals who had
1 We note that some of Montoya’s investors were originally from Central America, and they testified that the presence of a notary gave them more confidence in the transaction because, in their countries of origin, it means that the document has been done correctly, it carries a lot of weight, and it is a lot like having something done by an attorney. –3– invested money with Montoya. Her investigation revealed a common enterprise
where there was a pooling of investors’ money with an expectation of profit from
real estate investments, the flipping of houses, and the new construction of houses.
Investors also expected to profit by receiving monthly interest at the rate of 10% on
their investment. However, Assistant Director Cole found that Montoya owned only
one property located in Tarrant County, Texas.
During the course of her investigation, Assistant Director Cole learned about
more than one business associated with Montoya—All In One Investment &
Repairs, LLC, A&M Investors, and DM Services. She also learned that A&M
Investors had forfeited its existence and was no longer operating. Information
Montoya gave to an investor indicated that All In One Investment & Repairs, LLC,
was founded in 2010, but the Texas Secretary of State’s records show that it was
created in 2017. That company information also stated that it was known as a top
real estate development company, but Assistant Director Cole could find no
evidence substantiating that claim. Further, the company information claimed that
there were five active projects, but only one of the addresses provided belonged to
Montoya. He also represented to some investors that he had a business partner in
Florida and was waiting on a bank loan.
Further, Assistant Director Cole’s investigation revealed that two types of
securities were involved—evidence of indebtedness and investment contracts.
However, Montoya was not an investment dealer registered under Texas law to sell
–4– securities, and the securities issued by Montoya’s company, All In One Investment
& Repairs, LLC, were not registered or licensed with the State.
Based on her investigation, she believed that Montoya was running a Ponzi
scheme, which she defined as an investment scheme promising high rates of return
with little or no risk where the investors believe their profit payments are generated
from an underlying business entity when it is actually the money invested by
subsequent investors or their own money.
Connor Walsh, a financial forensic analyst for the State reviewed documents
provided by the Texas State Securities Board. He identified thirty-seven accounts
related to Montoya or his business and observed that Montoya was the signor on
thirty-six of those accounts. He also observed that Montoya was placing investor
funds directly into his personal account. In addition, in February 2018, Montoya
wired approximately $48,000 to Fashion Business Advisory in Brazil and another
$75,000 in March 2018. Walsh observed evidence of structuring—many of
Montoya’s financial transactions were for amounts just below $10,000—and noted
that banks must report transactions of $10,000 or more. Further, Walsh was unable
to find any purchases of land, houses, or building supplies. According to Walsh,
Montoya received approximately $1.4 million through February 2019 and only 1.7%
of the money came from business revenue. However, Walsh was unable to include
all of Montoya’s cash transactions because they were difficult to trace.
–5– In December 2019, Montoya was indicted for theft, money laundering, and
securities fraud. Then, in January 2020, Montoya went to Mexico where he stayed
for ten months. Montoya was detained when he tried to return to the United States
to visit his parents.
At the beginning of the trial, Montoya pleaded guilty to the jury in the
securities-fraud case and not guilty in the theft and money-laundering cases. The
jury then heard evidence on the theft and money-laundering cases. During the trial,
Montoya’s signed judicial confession to the securities-fraud case was admitted into
evidence. Also, Montoya testified on his own behalf. The trial judge instructed the
jury to return a guilty verdict in the securities-fraud case based on Montoya’s guilty
plea and instructed them as to the law for the theft and money-laundering cases; the
securities-fraud proceeding was bifurcated, instead of unitary, because the jury still
needed to determine Montoya’s guilt with respect to the remaining offenses of theft
and money-laundering. The jury found Montoya guilty of all three offenses. Then,
the case proceeded to a hearing on punishment, and the jury assessed his punishment
at forty years of imprisonment for each offense, to be served concurrently. The trial
court pronounced Montoya’s sentence and ordered that he would receive back-time
credit for any assessed court costs.2 After the jury assessed Montoya’s punishment,
2 We infer that the trial court allowed for back time to be converted to a monetary amount and credited toward the payment of court costs, but that calculation does not appear in our record. Cf. TEX. CODE CRIM. PROC. ANN. arts. 45.041(c-1), 45.048. –6– the trial court held a restitution hearing and ordered that Montoya pay restitution in
the total amount of $587,595.51 for all three cases.
II. Guilty Plea in the Securities-Fraud Case
In issue one, Montoya argues that his plea of guilty to the offense of securities
fraud was not knowingly and voluntarily made, violating his right to due process.
He claims that the investments forming the basis of the offense were not securities
and, as result, the securities-fraud judgment against him is void. He also contends
that he was not aware of the relevant circumstances and did not possess an
understanding of the law in relation to the facts because he did not understand that
the investments at issue were not securities as a matter of law. In addition, he argues
that securities fraud is a complex, difficult, and very specific allegation that requires
an attorney to have specific experience and knowledge in order to provide effective
assistance of counsel. Essentially, he maintains that he did not know that he had
been incorrectly charged and was pleading guilty to an incorrectly charged offense.
Citing federal rules of procedure and referring to a plea bargain—which did not
occur here—and judicial confession, he argues that the record demonstrates the trial
judge did not satisfy herself that there was a factual basis for his plea because there
is no evidence that he was aware that he was selling a security instrument, or a non-
security instrument, or a nonexempt-security instrument.
The State responds that Montoya failed to preserve this issue for appellate
review because he did not contest that the investment documents were securities and
–7– admitted that they were when he pleaded guilty to the jury, and he did not challenge
the voluntary nature of his plea during the underlying proceedings or exercise his
right to withdraw his guilty plea before the jury retired to deliberate.
We note that Montoya’s argument conflates several different legal standards
into a single issue—the requirement that guilty pleas are knowingly and voluntarily
made, sufficiency of the evidence, ineffective assistance of counsel, and actual
innocence. We also note that he does not argue that the trial court failed to properly
admonish him, that he did not understand the consequences of his guilty plea, that
he was coerced into making it, or that he is mentally incompetent. Accordingly, we
construe Montoya’s argument as complaining that his guilty plea was not made
voluntarily and knowingly because his trial counsel gave him erroneous legal advice
which amounted to ineffective assistance of counsel.
A. Applicable Law—Guilty Plea to Jury
A plea of guilty before a jury admits the existence of all incriminating facts
necessary to establish guilt. See Holland v. State, 761 S.W.2d 307, 312 (Tex. Crim.
App. 1988); Ex parte Williams, 703 S.W.2d 674, 678 (Tex. Crim. App. 1986). When
a defendant pleads guilty to the jury rather than the court, article 1.15 of the Texas
Code of Criminal Procedure does not apply and there is no need for the State to
introduce evidence showing the defendant’s guilt because there is no issue of guilt
that remains to be determined See Holland v. State, 761 S.W.2d at 313; Ex parte
Williams, 703 S.W.2d at 678; cf. TEX. CODE CRIM. PROC. ANN. art. 1.15 (last
–8– amended 1973); Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009) (when
defendant waives right to a jury trial and pleads guilty, trial court not authorized to
render judgment of guilt without State’s producing sufficient evidence to support
conviction). A defendant’s plea of guilty is conclusive as to his guilt and he may
not challenge the sufficiency of the evidence to support his conviction on appeal or
on collateral attack. See Ex parte Martin, 747 S.W.2d 789, 791–92 (Tex. Crim. App.
1988); Ex parte Williams, 703 S.W.2d at 678.
When a defendant changes his plea from not guilty to guilty in a felony case
but does not waive his right to a jury trial, the proceeding becomes a unitary trial,
and the jury’s primary function is to assess punishment. See State ex rel. Mau v.
Third Court of Appeals, 560 S.W.3d 640, 645 (Tex. Crim. App. 2018). In that event,
the appropriate procedure is to instruct the jury to return a guilty verdict. See
Holland, 761 S.W.2d at 313; see also CRIM. PROC. art. 26.14. In other words, a plea
of guilty to a jury eliminates guilt as an issue to be determined and it is proper for
the jury charge to instruct the jury to return a verdict of guilty, charge the jury on the
law as to punishment, and then instruct the jury to decide only those issues. See In
re State ex rel. Tharp, 393 S.W.3d 751, 757 (Tex. Crim. App. 2012); Holland, 761
S.W.2d at 313.
B. Applicable Law—Ineffective Assistance of Counsel
A guilty plea is valid only if it represents a voluntary and intelligent choice
among the courses of action open to the defendant. North Carolina v. Alford,
–9– 400 U.S. 25, 31 (1970). A guilty plea based upon erroneous advice of counsel is not
done voluntarily and knowingly. Ex parte Moussazadeh, 361 S.W.3d 684, 689 (Tex.
Crim. App. 2012).
The United States Constitution and Texas Constitution guarantee a criminal
defendant the right to reasonably effective assistance of counsel. U.S. CONST.
amend. VI; TEX. CONST. art. I, § 10; see also TEX. CODE CRIM. PROC. ANN.
art. 1.051. An ineffective-assistance-of-counsel claim may be brought for the first
time on appeal. Robinson v. State, 16 S.W.3d 808, 810 (Tex. Crim. App. 2000).
To prevail on an ineffective-assistance-of-counsel claim, a defendant must
show that: (1) counsel’s performance was deficient, and (2) a reasonable probability
exists that, but for counsel’s deficient performance, the result of the proceeding
would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694
(1984); State v. Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008). In
reviewing an ineffective-assistance-of-counsel claim based on an attorney’s advice
with respect to a guilty plea, courts apply the two-pronged standard announced in
Strickland. See Ex parte Moussazadeh, 361 S.W.3d at 690–91. Failure to make the
required showing of either deficient performance or sufficient prejudice defeats the
ineffectiveness claim. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App.
2005). The defendant bears the burden of proving both parts of the Strickland
analysis by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813
(Tex. Crim. App. 1999).
–10– Counsel’s performance is deficient if it falls below an objective standard of
reasonableness. Strickland, 466 U.S. at 688; Johnson v. State, 624 S.W.3d 579, 585
(Tex. Crim. App. 2021). It is not sufficient that the appellant show, with the benefit
of hindsight, that his counsel’s actions or omissions during trial were merely of
questionable competence. Johnson, 624 S.W.3d at 585. The right to effective
assistance of counsel does not entitle a defendant to errorless or perfect counsel. See
Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).
On appeal, there is a strong presumption that trial counsel’s conduct fell
within the wide range of reasonable professional assistance and that counsel’s
conduct constituted sound trial strategy. Johnson, 624 S.W.3d at 586. To defeat the
presumption, ineffective-assistance-of-counsel claims must be firmly founded in the
record; an appellate court will not speculate in its review. Bone v. State, 77 S.W.3d
828, 835 (Tex. Crim. App. 2002). Trial counsel should generally be given an
opportunity to explain his actions before being found ineffective. Rylander v. State,
101 S.W.3d 107, 111 (Tex. Crim. App. 2003). In the face of an undeveloped record,
counsel should be found ineffective only if his conduct was so outrageous that no
competent attorney would have engaged in it. Prine v. State, 537 S.W.3d 113, 117
(Tex. Crim. App. 2017). The record on direct appeal is generally insufficient to
show that trial counsel’s performance was deficient. Id.
–11– C. Montoya Has Not Shown that He Received Ineffective Assistance of Counsel
Montoya raises his ineffective assistance of counsel claim for the first time on
appeal; although he filed a motion for new trial, he did not raise his ineffective-
assistance-of-counsel claims in the trial court. Therefore, there was no evidentiary
hearing, and we do not have the benefit of an explanation from Montoya’s trial
counsel as to whether Montoya was advised to plead guilty to securities fraud,
whether Montoya’s decision to plead guilty was based on trial counsel’s allegedly
erroneous legal advice, or whether the decision for Montoya to plead guilty to
securities fraud and not guilty to theft and money laundering was part of some other
legal strategy. In short, although Montoya may raise this issue and argument for the
first time on appeal, the trial court record is silent as to trial counsel’s actions and
advice and the reasons behind them.
Because there was no hearing, there is nothing in the record showing that trial
counsel actually provided erroneous legal advice. Cf. Ex parte Moussazadeh, 361
S.W.3d at 692 (granting habeas relief based on involuntary guilty plea because
defense counsel admitted during habeas proceeding that he was unaware of recent
change in parole law and misadvised defendant regarding when he would be eligible
for parole). Nor does the record reflect that trial counsel’s conduct was so
outrageous that no competent attorney would have engaged in it. Based on the
record, we cannot conclude that there was no plausible professional reason for trial
counsel’s alleged conduct or advice. Accordingly, we cannot conclude that the –12– record firmly demonstrates that the trial counsel’s performance fell below an
objective standard of reasonableness.
Issue one is decided against Montoya.
III. Sufficiency of the Evidence to Support Montoya’s Convictions
In issues two and three, Montoya argues the evidence is insufficient to support
his convictions for theft and money laundering.
A. Standard of Review
Under the Due Process Clause, a criminal conviction must be based on legally
sufficient evidence. Braughton v. State, 569 S.W.3d 592, 607 (Tex. Crim. App.
2018) (citing Jackson v. Virginia, 443 U.S. 307, 315–16 (1979)). When assessing
the sufficiency of the evidence, an appellate court considers all of the evidence in
the light most favorable to the verdict to determine whether the jury was rationally
justified in finding guilt beyond a reasonable doubt. See Jackson, 443 U.S. at 319;
Witcher v. State, 638 S.W.3d 707, 709–10 (Tex. Crim. App. 2022). Further, an
appellate court is required to defer to the jury’s credibility and weight determinations
because the jury is the sole judge of the witnesses’ credibility and the weight
assigned to their testimony. See Jackson, 443 U.S. at 319, 326; Witcher, 638 S.W.3d
at 710. An appellate court will consider all evidence when reviewing the sufficiency
of the evidence, whether direct or circumstantial, properly or improperly admitted,
or submitted by the prosecution or defense. Jenkins v. State, 493 S.W.3d 583, 599
(Tex. Crim. App. 2016).
–13– B. Theft By Deception
In issue two, Montoya argues the evidence is insufficient to support his theft
conviction because it does not show that he appropriated the investors’ property by
deceptively inducing their effective consent or that he intended to deprive the
investors of their property. The State responds that, while there is no direct evidence
of Montoya’s intent, there is substantial circumstantial evidence showing he
intended to defraud the investors.
1. Applicable Law
A person commits theft if he unlawfully appropriates property with intent to
deprive the owner of property. TEX. PENAL CODE ANN. § 31.03(a).3 The offense is
a first-degree felony if the value of the property stolen is $300,000 or more. Id.
§ 31.03(e)(7). Generally, a charge of theft arises from a single occurrence. Kissire
v. State, No. 05-19-00307-CR, 2020 WL 5104967, at *7 (Tex. App.—Dallas
Aug. 31, 2020, pet. ref’d) (mem. op., not designated for publication). However,
when multiple amounts are obtained pursuant to one scheme or a continuing course
of conduct, whether from the same or several sources, the conduct may be considered
as one offense and the amounts aggregated to determine the grade of the offense.
PENAL § 31.09.
3 After the date of the offense, the legislature amended § 31.03 of the Texas Penal Code. We cite the current version of the statute because the subsequent amendments do not affect the outcome of this appeal. –14– Appropriation of property is unlawful if it is without the owner’s effective
consent. Id. § 31.03(b)(1). Consent is not effective if it is induced by deception. Id.
§ 31.01(3)(A). Deception means: (1) creating or confirming a false impression that
is likely to affect another’s judgment in the transaction and that the actor does not
believe to be true; (2) failing to correct a false impression that is likely to affect
another’s judgment in the transaction that the actor previously created or confirmed,
and that the actor does not believe to be true; or (3) promising performance that is
likely to affect another’s judgment in the transaction and that the actor does not
intend to perform or know will not be performed, except the failure to perform
without other evidence of intent or knowledge is insufficient. See id.
§ 31.01(1)(A),(B), and (E).
A person acts with intent when it is his conscious objective or desire to engage
in the conduct or cause the result. See id. § 6.03(a). Intent may be inferred from
circumstantial evidence such as acts, words, and the defendant’s conduct. See
Nisbett v. State, 552 S.W.3d 244, 267 (Tex. Crim. App. 2018). The fact-finder may
also consider whether there is a pattern or scheme established in multiple
transactions. PENAL § 31.03(c)(1) (evidence that actor has previously participated
in recent transactions other than, but similar to, transaction for which prosecution is
based is admissible for purpose of showing knowledge or intent); Lopez v. State, No.
05-18-01524-CR, 2020 WL 2988896, at *3 (Tex. App.—Dallas June 4, 2020, no
pet.) (mem. op., not designated for publication).
–15– In a theft case arising from a contract, the State must prove that the accused
intended to deprive the owner of the property when it was taken. Johnson v. State,
560 S.W.3d 224, 227 (Tex. Crim. App. 2018); Taylor v. State, 450 S.W.3d 528, 536
(Tex. Crim. App. 2014). A party to a contract may not be convicted of theft on the
theory that he acquired a down payment from his customer by deception if there is
no reason to doubt from the evidence that he had every expectation at the time that
the money changed hands of fulfilling his contractual obligation; at the time of the
down payment, the customer paid voluntarily; and the accused neither intended nor
knew he would not perform. Taylor, 450 S.W.3d at 536. Further, a party to a
contract may still be found guilty of theft if—at some point after formation of the
contract—he forms the mens rea to deprive and appropriates additional property by
deception, that is he induces his customer to make further payment on the contract
while no longer intending to perform, or at least knowing that he will not. Id. at 537.
Whether a defendant experienced personal gain from the property obtained may also
be considered in determining whether a defendant had criminal intent to commit
theft. Lopez, 2020 WL 2988896, at *3.
2. The Evidence Is Sufficient to Support Montoya’s Theft Conviction.
Montoya argues the evidence shows the investors were motivated by factors
other than the presence of a notary, post-dated checks, or a brochure because they
were referred to him by and relied on referrals from trusted friends and family,
especially as some investors testified that they had never met Montoya in person.
–16– As a result, he contends that it would be impossible for a rational jury to conclude
that his conduct played a substantial role in the investors’ voluntary and willing
investment with him; he claims the evidence shows that the investors did not rely on
his mistaken or incorrect information. He also claims that the evidence does not
show that, at the time of formation of each agreement, he believed or knew that he
would be unable to perform. As a result, he argues he did not have the requisite
intent at the time the agreements were made.
Montoya’s judicial confession for securities fraud, which was admitted into
evidence, cuts against his argument. In his judicial confession, he admitted to the
following which also supports his theft conviction:
He intentionally failed to disclose that money contributed by investors would be used to pay interest payments to other investors.
He intentionally failed to disclose that he used money contributed by investors to pay for his and his family’s personal expenses.
He intentionally failed to disclose that he and All In One Investments & Repairs, LLC, did not earn interest and income from the operations of All In One Investments & Repairs, LLC, to pay investors the interest, revenues, and income owed to them.
He intentionally and knowingly misrepresented that money contributed by investors would be placed into real-estate-related investments.
He intentionally and knowingly misrepresented that he and All In One Investments & Repairs, LLC had the ability to pay 10% to 15% monthly interest to the investors.
He intentionally and knowingly misrepresented that money contributed by investors would be safe and secure.
–17– He intentionally and knowingly misrepresented that money contributed by investors would be secured by post-dated checks that he provided at the time of investment.
Montoya’s trial testimony also supports his theft conviction. During his
testimony, he stated, among other things, that he has not developed any residential
suburbs, he has not personally developed any large buildings like apartments or
hotels, he did not tell his investors that Mizar Group, an unaffiliated entity, owned
the plot of land on which he said he was going to build houses, and he did not build
any homes, pave any streets, put in storms drains or utility connections on that plot.
The record also shows that Montoya engaged in multiple similar transactions around
the same time. See PENAL § 31.03(c)(1). Further, we note that some investors
testified that they “reinvested” their proceeds. See Taylor, 450 S.W.3d at 537.
Finally, Walsh testified that Montoya placed investor funds directly into his personal
account and wired a substantial amount of money to Fashion Business Advisory in
Brazil.
Further, to the extent that Montoya challenges the sufficiency of the evidence
on the basis of a conflict of evidence—his testimony conflicts with that of other
witnesses—that is actually an attack on the credibility and weight assigned to the
evidence by the jury. We are required to defer to the jury’s credibility and weight
determinations. See Jackson, 443 U.S. at 319, 326; Harrell v. State, 620 S.W.3d
910, 914 (Tex. Crim. App. 2021).
–18– We conclude that a rational jury could have found beyond a reasonable doubt
that Montoya committed the offense. Accordingly, we conclude the evidence is
sufficient to support Montoya’s conviction for theft.
Issue two is decided against Montoya.
C. Money Laundering
In issue three, Montoya argues the evidence is insufficient to support his
money-laundering conviction because there is no evidence that he had the requisite
knowledge that the property was the proceeds of a crime or that there was an
underlying predicate crime. The State responds that Montoya knew he had engaged
in securities fraud and, as such, the movement of funds through his Ponzi scheme
reflected laundering.
A person commits the offense of money laundering if the person knowingly
acquires or maintains an interest in, conceals, possesses, transfers, or transports the
proceeds of criminal activity. PENAL § 34.02(a)(1); see also Acosta v. State, 429
S.W.3d 621, 625 (Tex. Crim. App. 2014). An offense is a first-degree felony if the
value of the funds is $300,000 or more. PENAL § 34.02(e)(4).
A person acts knowingly when he is aware of the nature of his conduct or that
the circumstances exist or when he is aware that his conduct is reasonably certain to
cause the result. See PENAL § 6.03(b). Knowledge of the specific nature of the
–19– criminal activity giving rise to the proceeds is not required to establish the culpable
mental state for money laundering. Id. § 34.02(a–1).
The money-laundering statute requires proof of a temporal connection or
nexus between the proceeds and some criminal activity. See O’Brien v. State, 544
S.W.3d 376, 394 (Tex. Crim. App. 2018). “Proceeds” are defined as funds acquired
or derived directly from, produced through, realized through, or used in the
commission of an act. PENAL § 34.01(4)(A); see also Lopez, 2020 WL 2988896,
at *7. “Funds” includes coin or paper money designated as legal tender and currency
or the equivalent, including electronic funds, personal checks, bank checks,
traveler’s checks, money orders, bearer negotiable instruments, bearer investment
securities, bearer securities, certificates of stock, stored value cards, or digital
currency. See PENAL § 34.01(2)(A), (D). “Criminal activity” is defined as “any
offense, including any preparatory offense, that is classified as a felony under the
laws of this state or the United States.” Id. § 34.01(1)(A); see also Lopez, 2020 WL
2988896, at *7. If the proceeds of the criminal activity are related 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 value of the proceeds aggregated in
determining the classification of the offense. PENAL § 34.02(f). Frequently, there is
no direct evidence that the funds constitute such proceeds, but a criminal conviction
may be based on circumstantial evidence. See Acosta, 429 S.W.3d at 625
(discussing cash seized from truck in drug trafficking operation).
–20– 2. The Evidence Is Sufficient to Support Montoya’s Money-Laundering Conviction
First, we consider Montoya’s argument that there is no evidence he had the
requisite knowledge that the property was the proceeds of a crime. In support of his
argument, he points to witness testimony showing that he never expressed concern
for the legal consequences of his actions. However, knowledge of the specific nature
of the criminal activity giving rise to the proceeds is not required to establish a
culpable mental state. See PENAL § 34.02(a–1). Nevertheless, Montoya pleaded
guilty before the jury to the offense of securities fraud, demonstrating he had
knowledge of the predicate criminal activity. See Act of April 27, 2011, 82d Leg.,
R.S., ch. 523, § 2, sec. 29, 2011 Tex. Sess. Law Serv. Ch. 523 (previously TEX. REV.
CIV. STAT. ANN. art. 581-29C(1)(c)) (repealed 2019).4
Also, he directs us to his testimony denying that he fled to Mexico after being
indicted, instead claiming he left the country to attend a speaking engagement.
However, the record also shows that Montoya admitted that he remained in Mexico
for approximately ten months, that the deputies tried to locate him at his home in the
United States, and that he was detained when he tried to recross the U.S.–Mexico
border to visit his parents. To the extent that Montoya challenges the sufficiency of
the evidence on the basis of a conflict of evidence, it is actually an attack on the
4 Montoya was indicted for securities fraud on December 18, 2019. The version of article 581- 29C(1)(c) of the Texas Securities Act that applies to this case was effective from September 1, 2011 to December 31, 2021. That version was repealed in 2019 and the current version, which became effective on January 1, 2022, is § 4007.203 of the Texas Securities Act. See TEX. GOV’T CODE ANN. § 4007.203. –21– credibility and weight assigned to the evidence by the jury. We are required to defer
to the jury’s credibility and weight determinations. See Jackson, 443 U.S. at 319,
326; Harrell, 620 S.W.3d at 914.
Next, we consider Montoya’s argument that there is no evidence of an
underlying predicate crime. The indictment alleged that Montoya, pursuant to one
scheme and continuing course of conduct, knowingly acquired or maintained an
interest in, concealed, possessed, transferred, and transported the proceeds of
securities fraud. See Walker v. State, 594 S.W.3d 330, 335–36 (Tex. Crim. App.
2020) (sufficiency analysis reviews whether evidence support elements of charged
crime). Because securities fraud was the only predicate offense alleged in the
indictment to support the money-laundering offense, the State had to prove the
predicate offense of securities fraud. See Cary v. State, 507 S.W.3d 750, 760 (Tex.
Crim. App. 2016). Montoya pleaded guilty before the jury to the offense of
securities fraud involving an amount of $100,000 or more,5 which is a felony
offense. See PENAL § 34.02(e); Act of April 27, 2011, 82d Leg., R.S., ch. 523, § 2,
sec. 29, 2011 Tex. Sess. Law Serv. Ch. 523 (previously TEX. CIV. STAT. ANN.
art. 581-29C(1)(c)). A plea of guilty before a jury admits the existence of all
incriminating facts necessary to establish guilt. See Holland, 761 S.W.2d at 312; Ex
parte Williams, 703 S.W.2d at 678. Accordingly, we conclude that a rational jury
5 Montoya does not contest the sufficiency of the evidence to prove that he laundered $300,000 or more. Nevertheless, Walsh testified that Montoya received approximately $1.4 million through February 2019 and only 1.7% of the money came from business revenue. –22– could have found Montoya engaged in the predicate criminal offense of securities
fraud.
We conclude that a rational jury could have found that Montoya committed
the offense beyond a reasonable doubt. Accordingly, we conclude the evidence is
sufficient to support Montoya’s conviction for money laundering.
Issue three is decided against Montoya.
IV. Assessment of Court Costs
In its cross issue, the State argues that the trial court erred when it assessed
costs in all three of the judgments, and (1) requests that we delete the assessment of
court costs from the theft and securities-fraud judgments, and (2) requests that we
increase the amount of the costs assessed in the money-laundering judgment.
Montoya did not file a reply brief responding to the State’s cross issue.
A. State Requests Modification Increasing the Amount of Costs Assessed in the Money-Laundering Case
We begin by addressing the second portion of the State’s cross issue that
requests we increase the court costs assessed in the money-laundering case to $301.
The State notes that the record for only the money-laundering case contains a bill of
costs reflecting a specific amount, that is $301. And the State argues that amount is
greater than the amount stated in the money-laundering judgment.
A person convicted of an offense shall pay a reimbursement fee of $15 if the
person has been convicted of a felony and if the person fails to pay any portion of –23– court costs, restitution, or other reimbursement fee and more than 30 days have
passed since the judgment was signed. See CRIM. PROC. art. 102.030(a). However,
the filing of a notice of appeal suspends the defendant’s obligation to pay fines, court
costs, and restitution during the pendency of the appeal. Dulin v. State, 620 S.W.3d
129, 133 (Tex. Crim. App. 2021); Shuler v. State, 650 S.W.3d 683, 689–90 (Tex.
App.—Dallas 2022, no pet.).
2. The Money-Laundering Judgment Should Not Be Modified to Increase the Amount of Costs Assessed because the Additional Amount Contained in the Bill of Costs is Premature
All three judgments were signed on June 14, 2022, and each assessed court
costs in the amount of $286. Montoya filed notices of appeal in all three cases on
June 15, 2022. The fee docket for the money-laundering case includes a $15 fee for
the “IP PLN” that was assessed on July 15, 2022, which increases the amount of the
$286 in court costs to $301. The cost bill abbreviation explanation sheet defines “IP
PLN” as an “Installment Plan.” We conclude the installment plan fee assessed
against Montoya in the money-laundering case was premature. See Dulin,
620 S.W.3d at 133; Shuler, 650 S.W.3d at 689–90. Also, we note that the trial court
ordered that Montoya would receive back-time credit for any assessed court costs.
Accordingly, we decline the State’s request that we modify the trial court’s judgment
in the money-laundering case to raise the court costs assessed to $301.
The second portion of the State’s cross issue is decided against the State.
Further, because the installment-plan fee was assessed prematurely, we strike the
–24– $15 “IP PLN” from the bill of costs in its entirety without prejudice to its being
assessed later if, more than 30 days after the issuance of the appellate mandate,
Montoya has failed to completely pay any fine, court costs, or restitution that he
owes. See Dulin, 620 S.W.3d at 133.
B. State Requests Modification of the Judgments Because the Trial Court Imposed Duplicative Courts Costs and Fees
Next, we address the first portion of the State’s cross issue that argues the trial
court erred when it assessed costs in all three of the judgments because Montoya was
convicted of more than two offenses in a single criminal trial and requests that
we delete the assessment of court costs from the theft and securities-fraud judgment.
When a defendant is convicted of two or more offenses in a single criminal
trial, the trial court may assess each court cost or fee only once against the defendant.
CRIM. PROC. art. 102.073(a); Leakey v. State, No. 05-23-00239-CR, 2024 WL
3158159, at *4 (Tex. App.—Dallas June 25, 2024, pet. filed) (mem. op., not
designated for publication). The amount of each fee or cost assessed is determined
by using the highest category of offense that is possible based on the defendant’s
convictions. CRIM. PROC. art. 102.073(b); Leakey, 2024 WL 3158159, at *4. As a
result, where a trial court hears all cases against a defendant together in a single
criminal action, the trial court must assess each court cost or fee only once, in the
judgment of the highest category offense for which the defendant is convicted.
Leakey, 2024 WL 3158159, at *4. –25– Where a trial court has imposed duplicative court costs and fees in two or
more cases in a single criminal action, the proper remedy is for the appellate court
to delete the court costs and fees assessed in the judgments for the lower degree
offenses. See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013)
(concluding where trial court erroneously includes certain amounts as court costs in
judgment, appeals court should modify judgment to delete erroneous amount); see
also Leakey, 2024 WL 3158159, at *4. However, where the convictions are for the
same category of offense and the costs are the same, the costs should be assessed in
the case with the lowest trial court cause number. Shuler, 650 S.W.3d at 690.
2. The Trial Court Imposed Duplicative Courts Costs and Fees
The records in these cases show that Montoya was convicted of three offenses
in a single criminal action and the trial court ordered that he would receive back time
credit for any assessed court costs. But in the judgments, the trial court assessed
court costs in the amount of “$286 BT CREDIT” in the theft case, $286 in the
money-laundering case, and “$286 bt credit” in the securities-fraud case. The record
also shows that all three cases were first-degree felonies.
The securities-fraud case has the lowest trial court cause number. See Shuler,
650 S.W.3d at 690 (where convictions are for same offense category and costs are
same, costs should be assessed in case with lowest trial court cause number).
However, the cost bills in the clerk’s records for the theft and securities-fraud cases
do not specify monetary amounts; they merely contain the abbreviation explanation
–26– sheet. Nevertheless, Montoya does not dispute the accuracy of the amount of the
costs assessed in these cases.
We conclude the trial court erred because all three cases were tried in a single
criminal trial and all three judgments assess costs. We conclude that the costs should
be assessed in the securities-fraud case because the convictions are for the same
category of offense, the costs are the same in all three cases, and the securities-fraud
case has the lowest trial court cause number. See id. As a result, we also conclude
the judgments in the theft and money-laundering cases contain errors because they
assessed court costs and have higher trial court cause numbers. Accordingly, we
modify the judgments in the theft case and the money-laundering case to state that
the court costs are $0.
The first portion of the State’s cross issue is decided in its favor, in part, and
against it, in part.
V. Modification of the Judgments
Although neither party raises the issue, we observe that the record reveals
additional errors with respect to the statutes for the offenses. An appellate court has
the authority to modify an incorrect judgment to make the record speak the truth
when it has the necessary information to do so. See TEX. R. APP. P. 43.2(b); French
v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (adopting the reasoning in
Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d) (en
banc)).
–27– The theft judgment incorrectly lists the statute for the offense as “31.03(E)(7)
Penal Code.” The record shows that Montoya was indicted for the offense of theft
which is an offense under § 31.03(a) and it was elevated to a first-degree felony
when the value of the property stolen is $300,000 or more under subsection (e)(7).
See PENAL § 31.03(a), (e)(7). Accordingly, we conclude the trial court’s theft
judgment should be modified to state the correct statute—TEX. PENAL CODE ANN.
§ 31.03(a), (e)(7).
The money-laundering judgment incorrectly lists the statute for the offense as
“34.02(E)(4) Penal Code.” The record shows that Montoya was indicted for the
offense of money laundering pursuant to § 34.02(a)(1) of the Texas Penal Code and
it was elevated to a first-degree felony under subsection (e)(4) because the value of
the funds was $300,000 or more. See PENAL § 34.02(a)(1), (e)(4). Accordingly, we
conclude the trial court’s money-laundering judgment should be modified to state
the correct statute—TEX. PENAL CODE ANN. § 34.02(a)(1), (e)(4).
The securities-fraud judgment incorrectly lists the statute for the offense as
“581.29(C)(1)(C) VSC Penal Code.” The record shows that Montoya was indicted
for and pleaded guilty to securities fraud, which is an offense under art. 581-29C(1)
of the Texas Securities Act, and it was elevated to a first-degree felony under
subsection (c) because the amount involved was $100,000 or more. See Act of April
27, 2011, 82d Leg., R.S., ch. 523, § 2, sec. 29, 2011 Tex. Sess. Law Serv. Ch. 523
(previously TEX. CIV. STAT. ANN. art. 581-29C(1)(c)) (repealed 2019). We also note
–28– that there is no “581.29(C)(1)(C) VSC Penal Code.” Accordingly, we conclude the
trial court’s securities-fraud judgment should be modified to state the correct
statute—TEX. CIV. STAT. ANN. art. 581-29C(1)(c).
VI. Conclusion
Montoya has not shown his guilty plea to the jury for securities fraud was not
made knowingly and voluntarily because his trial counsel gave him erroneous legal
advice that amounted to ineffective assistance of counsel. Also, the evidence is
sufficient to support his convictions for theft and money laundering.
The trial court erred when it assessed costs in all three judgments and signed
judgments with errors in them.
We modify the trial court’s theft judgment (appellate cause no. 05-22-00621-
CR and trial court cause no. F-1900780-I) as follows:
“Statute for Offense: 31.03(E)(7) Penal Code” is modified to read “Statute for Offense: TEX. PENAL CODE ANN. § 31.03(a), (e)(7)”; and
“Court Costs: $286 BT CREDIT” is modified to read “Court Costs: $0.”
We modify the trial court’s money-laundering judgment (appellate cause
no. 05-22-00622-CR and trial court cause no. F-1900781-I) as follows:
“Statute for Offense: 34.02(E)(4) Penal Code” is modified to read “Statute for Offense: TEX. PENAL CODE ANN. § 34.02(a)(1), (e)(4)”; and
“Court Costs: $286” is modified to read “Court Costs: $0.”
–29– Also, we strike the $15 “IP PLN” in its entirety from the bill of costs in the
money-laundering case (appellate cause no. 05-22-00622-CR and trial court cause
no. F-1900781-I) without prejudice to its being assessed later if, more than 30 days
after the issuance of the appellate mandate, Montoya has failed to completely pay
any fine, court costs, or restitution that he owes.
We modify the trial court’s securities-fraud judgment (appellate cause no. 05-
22-00623-CR and trial court cause no. F-1900779-I) as follows:
“Statute for Offense: 581.29(C)(1)(C) VSC Penal Code” is modified to read “Statute for Offense: TEX. CIV. STAT. ANN. art. 581-29C(1)(c).”
We affirm the trial court’s judgments as modified. See TEX. R. APP.
P. 43.2(b).
Finally, we note that it is incumbent on the trial judge to sign and the district
clerk’s office to issue judgments that properly reflect what occurred in any given
case. See CRIM. PROC. arts. 42.01 (setting out required provisions of criminal
judgment), 42.16 (providing judgment shall adjudge costs). It is also incumbent on
the counsel to review judgments for any errors and seek to correct such errors while
the trial court retains plenary power so that accurate judgments can be prepared.
This Court should not be tasked with correcting the trial court’s judgments and
district clerk’s cost bills time and time again.
–30– The trial court is directed to prepare corrected judgments that reflect the
modifications made in this Court’s opinion and judgments in these cases. See
Shumate v. State, 649 S.W.3d 240, 244–45 (Tex. App.—Dallas 2021, no pet.).
The trial court is directed to order the district clerk to prepare a corrected bill
of costs that reflects the modifications made in this Court’s opinion and judgment in
the money-laundering case.
The trial court is also directed: (1) to order the district clerk to prepare and file
supplemental clerk’s records containing the corrected judgments and bill of costs
with this Court; (2) to provide the corrected judgments and bill of costs to the parties;
and (3) to send the corrected judgments and bill of costs to the Texas Department of
Criminal Justice.
/Emily A. Miskel/ EMILY A. MISKEL JUSTICE Do Not Publish TEX. R. APP. P. 47
220621F.U05
–31– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
WILSON ALEJANDRO On Appeal from the Criminal District MONTOYA, Appellant Court No. 2, Dallas County, Texas Trial Court Cause No. F-1900780-I. No. 05-22-00621-CR V. Opinion delivered by Justice Miskel. Justices Smith and Breedlove THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:
“Statute for Offense: 31.03(E)(7) Penal Code” is modified to read “Statute for Offense: TEX. PENAL CODE ANN. § 31.03(a), (e)(7)”; and
“Court Costs: $286 BT CREDIT” is modified to read “Court Costs: $0.”
As MODIFIED, the judgment is AFFIRMED.
We DIRECT the trial court to prepare a corrected judgment that reflects the modifications made in this Court’s opinion and judgment in this case.
We also DIRECT the trial court: (1) to order the district clerk to prepare and file a supplemental clerk’s record containing the corrected judgment with this Court; (2) to provide the corrected judgment to the parties; and (3) to send the corrected judgment to the Texas Department of Criminal Justice.
Judgment entered August 22, 2024
–32– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
WILSON ALEJANDRO On Appeal from the Criminal District MONTOYA, Appellant Court No. 2, Dallas County, Texas Trial Court Cause No. F-1900781-I. No. 05-22-00622-CR V. Opinion delivered by Justice Miskel. Justices Smith and Breedlove THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:
“Statute for Offense: 34.02(E)(4) Penal Code” is modified to read “Statute for Offense: TEX. PENAL CODE ANN. § 34.02(a)(1), (e)(4)”; and
We STRIKE the $15 “IP PLN” in its entirety from the bill of costs without prejudice to its being assessed later if, more than 30 days after the issuance of the appellate mandate, appellant WILSON ALEJANDRO MONTOYA has failed to completely pay any fine, court costs, or restitution that he owes.
We DIRECT the trial court to prepare a corrected judgment that reflects the modifications made in this Court’s opinion and judgment in this case.
We DIRECT the trial court to order the district clerk to prepare a corrected bill of costs that reflects the modifications made in this Court’s opinion and judgment.
We also DIRECT the trial court: (1) to order the district clerk to prepare and file a supplemental clerk’s record containing the corrected judgment and bill of costs –33– with this Court; (2) to provide the corrected judgment and bill of costs to the parties; and (3) to send the corrected judgment and bill of costs to the Texas Department of Criminal Justice.
–34– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
WILSON ALEJANDRO On Appeal from the Criminal District MONTOYA, Appellant Court No. 2, Dallas County, Texas Trial Court Cause No. F-1900779-I. No. 05-22-00623-CR V. Opinion delivered by Justice Miskel. Justices Smith and Breedlove THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:
“Statute for Offense: 581.29(C)(1)(C) VSC Penal Code” is modified to read “Statute for Offense: TEX. CIV. STAT. ANN. art. 581-29C(1)(c).”
We DIRECT the trial court to prepare a corrected judgment that reflects the modification made in this Court’s opinion and judgment in this case.
We also DIRECT the trial court: (1) to order the district clerk to prepare and file a supplemental clerk’s record containing the corrected judgment with this Court; (2) to provide the corrected judgment to the parties; and (3) to send the corrected judgment to the Texas Department of Criminal Justice.
–35–