Adesiyan v. State, No. 01-04-00494-CR (TX 8/11/2005)
| Decision Date | 11 August 2005 |
| Docket Number | No. 01-04-00494-CR.,01-04-00494-CR. |
| Parties | OLUKUNLE GABRIEL ADESIYAN, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Supreme Court |
On Appeal from the 184th District Court, Harris County, Texas, Trial Court Cause No. 959700.
Panel consists of Justices NUCHIA, KEYES, and BLAND.
A grand jury indicted appellant Olunkunle Gabriel Adesiyan for the felony offense of theft of property, aggregated at a total value of greater than $20,000 and less than $100,000. A jury found Adesiyan guilty of the lesser included offense of felony theft of property, aggregated at a total value of greater than $1,500 and less than $20,000, and assessed punishment at two years' confinement and a $10,000 fine. Adesiyan contends (1) the trial court erred in denying his motion to quash the indictment; (2) the trial court erred in denying his motion to suppress; and (3) the evidence is legally and factually insufficient to support his conviction. We affirm.
Accountemps, a company that provides temporary financial and accounting professionals, employed Adesiyan. Accountemps placed Adesiyan, an accountant, in a Coca-Cola, Inc. office in Houston. Accountemps required Adesiyan to document the hours that he worked for Coca-Cola on a time sheet, which Accountemps provided to him. Adesiyan then faxed his time sheets to Accountemps each week. After receiving Adesiyan's time sheets, Accountemps paid Adesiyan and billed Coca-Cola for the time Adesiyan worked. Cheryl Munson supervised Adesiyan's work for Accountemps.
Gary Stone, a senior accounting manager at Coca-Cola, was the onsite person designated to approve Adesiyan's time sheets. Stone explained to Adesiyan that, as an employee of Accountemps, Adesiyan was not permitted to work any overtime hours. In February 2003, Coca-Cola's human resources department noticed that two of Adesiyan's time sheets bore similar signatures, purporting to be Stone's, that authorized overtime hours. Human resources informed Stone, and Coca-Cola began an investigation. The investigation revealed that Adesiyan had submitted numerous time sheets containing false information and forged signatures. Adesiyan had used an original time sheet actually signed by Stone, copied it, and then changed the information concerning the hours he had worked to include overtime. Adesiyan faxed these time sheets to Accountemps for payment based on the falsely submitted hours. After discovering the extent of Adesiyan's fraud, Coca-Cola and Accountemps contacted the Harris County District Attorney's Office. Investigators Boethel and Kelly from the district attorney's office met with Stone at the Coca-Cola office on a Friday in an effort to intercept his weekly time sheet facsimile to Accountemps. Stone and the investigators positioned themselves in an office in the accounting area and observed Adesiyan send his time sheet to Accountemps. Stone checked the facsimile machine and confirmed that Adesiyan faxed his time sheet to Accountemps's facsimile number. Stone then requested that Accountemps fax to him and the investigators a copy of the time sheet Adesiyan had just submitted.
After confirming that Adesiyan had faxed Accountemps a time sheet with a fraudulent overtime claim, Stone entered Adesiyan's office, obtained the time sheet Adesiyan had just faxed to Accountemps, and asked Adesiyan to go with him to another office and meet with the investigators. Adesiyan complied. During the initial interview, Adesiyan denied submitting false claims, but admitted that he had faxed the time sheet to Accountemps. Adesiyan told the investigators that Stone had approved his overtime and had signed his time sheet earlier that morning. After the interview, the investigators placed Adesiyan under arrest, allowed him to collect his personal items from his office, and transported him to the district attorney's office. The investigators found a time sheet with Stone's original signature in blue ink, and whiteout liquid in Adesiyan's briefcase.
After Adesiyan responded that he understood his Miranda rights, the investigators further questioned him at the district attorney's office. During this videotaped interview, the investigators presented Adesiyan with the forged time sheets, and Adesiyan admitted that he had copied ten time sheets and submitted approximately $10,000 in unauthorized overtime.
At trial, Munson testified that Accountemps reimbursed Coca-Cola over $20,000 for Adesiyan's falsely submitted time sheets. Munson further testified that Accountemps overpaid Adesiyan $15,000 for regular, holiday, and overtime hours, as well as bonus pay, none to which he was entitled. Adesiyan's pay stubs indicate that, while he worked at Coca-Cola, Accountemps paid him over $10,000 in overtime pay.
Adesiyan contends the trial court erred in denying his motion to quash the indictment because the indictment fails to provide adequate notice of the pending charges. Specifically, Adesiyan contends the indictment (1) fails to specify the method by which he "allegedly deceived the complainant," and (2) fails to allege that he appropriated the money without the effective consent of the owner.
We review the trial court's decision to grant a motion to quash for an abuse of discretion. Geter v. State, 779 S.W.2d 403, 404 (Tex. Crim. App. 1989); Jordan v. State, 56 S.W.3d 326, 329 (Tex. App.-Houston [1st Dist.] 2001, pet. ref'd). A trial court abuses its discretion in denying a motion to quash if the language of the indictment is so vague or indefinite as to deny the defendant effective notice of the acts he allegedly committed. DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988); State v. York, 31 S.W.3d 798, 800-01 (Tex. App.-Dallas 2000, pet. ref'd). "A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property." Tex. Pen. Code Ann. § 31.03(a) (Vernon 2003). Appropriation of property is unlawful if it is "without the owner's effective consent." TEX. PEN. CODE ANN. § 31.03(b)(1). Generally, if the Legislature statutorily defines a term, the State need not further allege it in the indictment. Geter, 779 S.W.2d at 405 (citing Thomas v. State, 621 S.W.2d 158, 161 (Tex. Crim. App. 1981)). If the statutory term provides for more than one manner or means to commit that act or omission, however, then, upon timely request, the State must allege the particular manner or means it seeks to establish. Id. at 405-06.
The indictment in this case alleges that Adesiyan:
. . . on or about AND BETWEEN NOVEMBER 10, 2001 AND FEBRUARY 14, 2003, did then and there unlawfully, pursuant to one scheme and continuing course of conduct, appropriate, by acquiring and otherwise exercising control over the property, namely, MONEY, owned by CHERYL MUNSON AND ACCOUNTEMPS, hereafter styled the Complainant, with the intent to deprive the Complainant of the property and the total value of the property appropriated was over twenty thousand dollars and under one hundred thousand dollars.
In Geter, the Texas Court of Criminal Appeals held that in a theft prosecution in which the State relies upon a defendant's act or omission to negate effective consent, the indictment must allege the particular statutory negatives that vitiated consent, else the indictment is subject to a timely motion to quash for lack of notice. 779 S.W.2d at 407. The Legislature has provided that consent is not effective, if it is:
(1) induced by deception or coercion; (2) given by a person the actor knows is not legally authorized to act for the owner; (3) given by a person who because of their youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable property dispositions; (4) given solely to detect the commission of an offense; or (5) given by a person who, by reason of advanced age, is known by the actor to have a diminished capacity to make informed and rational decisions about the reasonable disposition of property.
See TEX. PEN. CODE ANN. 31.01(3) (Vernon 2003).
Here, the State maintains that Adesiyan never had consent to work overtime, and thus section 31.03 never came into play. Adesiyan responds that only the overtime was allegedly unauthorized, and the indictment fails to distinguish between regular hours and overtime hours—or even to mention the means of committing the theft at all.
Even assuming that Adesiyan is correct that the indictment fails to convey a requisite item of notice to obtain a reversal of his conviction, Adesiyan must also show that the State's failure to give that particularized notice impacted his ability to prepare his defense. Geter, 779 S.W.2d at 407. In his briefing to this court, Adesiyan fails to address whether the alleged defect—the failure to provide the precise theory of deception—prejudiced his defense. We therefore conclude that Adesiyan has failed to show harm from the trial court's denial of his motion to quash the indictment. See id.
Adesiyan contends the trial court erred in denying his motion to suppress the facsimile copy of his forged time sheet and his videotaped interview at the district attorney's office because they are the fruits of an illegal arrest. Specifically, Adesiyan contends the officers had no warrant and lacked probable cause to arrest him. Adesiyan based his motion to suppress on federal and state constitutional grounds, as well as on a state statutory ground. U.S. CONST. amends. IV, V, VI, XIV; TEX. CONST. art. I, §§ 9, 10, 19; TEX. CODE CRIM. PROC. ANN. art. 38.22 (Vernon 2005).1
In reviewing a trial court's ruling on a motion to suppress, we apply the bifurcated standard of review articulated in Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We defer to a trial court's determination of historical...
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