Biagas v. State
| Decision Date | 28 September 2005 |
| Docket Number | No. 01-03-00628-CR.,01-03-00628-CR. |
| Citation | 177 S.W.3d 161 |
| Parties | Lance Gerard BIAGAS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Supreme Court |
Brian W. Wice, Houston, TX, for Appellant.
Donald W. Rogers Jr., Assistant District Attorney, Charles A. Rosenthal, Jr., District Attorney-Harris County, Houston, TX, for Appellee.
Panel consists of Justices TAFT, JENNINGS, and BLAND.
A jury found Lance Gerard Biagas guilty of the felony offense of theft of property, aggregated at a total value of over $1,500.00 and under $20,000.00, as charged in the indictment. The trial court assessed punishment at two years' confinement, suspended the sentence and placed Biagas on community supervision, and fined him $500.00. In this appeal, Biagas contends: (1) the evidence is legally insufficient to support the jury's verdict; (2) the trial court erred in refusing to permit him to replace a biased juror; (3) he received ineffective assistance of counsel; (4) the trial court erred in admitting the trial prosecutor's affidavit at a hearing on a motion for new trial; (5) the trial court erred in excluding certain testimony essential to his defense; and (6) the trial court erred in overruling his motion for a mistrial after the prosecutor's improper jury argument.
Angela Holden, Biagas's mother, formerly served as Chief Clerk in the office of Harris County Precinct 7 Constable Perry Wooten. During her employment, Harris County contracted with A-Temps Corporation to provide temporary workers to staff various Harris County departments, including the constable's office. Holden, as a supervisor in the constable's office, approved the temporary employees' time sheets on behalf of Harris County. Based on the workers' representations on the time sheets, and a Harris County supervisor's signature, the county remitted funds to A-Temps to pay the temporary workers upon receipt of an invoice. Harris County also paid A-Temps a commission of 15-18% of the total funds paid.
Holden assigned several of her relatives, including her son Biagas, to work at the constable's office as employees of A-Temps. The relatives, including Biagas, submitted falsified time sheets for hours they never worked, which Holden approved as a Harris County supervisor. She then submitted the time sheets to A-Temps. A-Temps forwarded an invoice together with the false time sheets to the Harris County accounts payable department. Harris County remitted funds to A-Temps for the time reflected on the time sheets, and a commission, as directed by the Harris County auditor's office. Biagas received A-Temps checks payable to him in the amount of $8,662.68 for time he had never worked. Biagas either cashed and spent the checks or he deposited them in Holden's account at the Harris County Federal Credit Union.
In determining the legal sufficiency of the evidence, we review the evidence in a light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the criminal offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App.2004). Although our analysis considers all evidence presented at trial, we may not re-weigh the evidence or substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000).
Biagas contends that the evidence is legally insufficient to support the jury's verdict because the State failed to prove an essential element of felony theft—ownership. To prove felony theft, the State must prove that a person unlawfully appropriated property with intent to deprive the owner of the property. TEX. PEN.CODE ANN. § 31.03(a) (Vernon 2003). Here, the indictment alleged that Steve Garner, in his capacity as chief assistant auditor for Harris County, was the owner of the funds. Biagas asserts that Garner and Harris County were not the "owners" of the money at the time he misappropriated it, and that the county did not have any right, title, or interest in the funds he received from A-Temps.
The State responds that Steve Garner and the county possessed the funds at the time Biagas misappropriated them. The State concedes that although A-Temps "may have been in possession of the funds after they were appropriated, the corporation had no right to possession of the funds whatsoever because of appellant's fraud and therefore did not have and could not have a greater right to possession of same than Harris County."
The Texas Penal Code defines an owner as a person who "has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor." TEX. PEN.CODE ANN. § 1.07(a)(35)(A) (Vernon 2003). Section 1.07(a)(39) defines possession as "actual care, custody, control, or management." TEX. PEN.CODE ANN. § 1.07(a)(39) (Vernon 2003). Here, it is undisputed that A-Temps was an independent contractor hired by Harris County to provide temporary employees to the constable's office. A-Temps employed Biagas, who falsified the time sheets for work he did not perform at the constable's office. Based upon the verified (but false) time sheets, A-Temps paid Biagas, and submitted invoices, with the time sheets for supporting documentation, to Harris County for reimbursement. At trial, Garner conceded that the county did not have authority or control over A-Temps funds. Harris County personnel, however, supervised Biagas and approved his payment claims based on time sheets Biagas falsified and submitted to the county. By falsifying the time records, Biagas caused the county to release its money to a conduit corporation from which he ultimately took possession of the funds. Thus, Harris County released funds in its possession based upon Biagas's misrepresentation.
Biagas relies on Bailey v. State, 87 S.W.3d 122 (Tex.Crim.App.2002), for his contention that Harris County is not an owner of the funds. In Bailey, the City of Houston entered into a contract with C & C Services to provide flagmen. Id. at 125. The flagmen allegedly submitted false time sheets to the City of Houston. Id. C & C Services paid the defendants based on their daily time sheets. Id. The City of Houston later reimbursed C & C Services. Id. The trial court granted the defendants' motions for directed verdicts because the State had alleged the City as the owner of the funds, as opposed to the owner of C & C Services. Id. The issue on appeal in Bailey, however, was whether the State could re-indict the defendants on behalf of another owner. Id. The facts in Bailey are distinguishable from this case. In Bailey, an attorney for the City testified during the bench trial that she was not aware of any conditions in the contracts that would require the city to monitor checks written by the independent contractor to the workers and the opinion does not indicate that the defendants ever misrepresented their work directly to the City. Id. Here, the record shows that Harris County required Biagas and a Harris County supervisor to verify his work before it would release funds to A-Temps. Thus, Harris County actually approved the time sheets before A-Temps received payment and issued a check to Biagas. Such evidence shows that Harris County maintained control over the funds, and absent Biagas's misrepresentations, would not have released the funds.
Biagas also relies on United States v. Howard, 787 F.Supp. 769, 771 (S.D.Ohio, 1992) for the proposition that Garner was not the proper owner of the stolen funds. The Howard court observed that if "the government no longer has supervision or control over funds or the ultimate use of the funds, and no longer has any pecuniary interest in the funds, it would grossly distort the English language to call those funds money . . . of the United States." Id. In Howard, the court held that the evidence was insufficient to prove that the federal government was the owner of social security benefits that had been properly deposited into a personal banking account. Id. The court noted that the deposits were made correctly, because the recipient was entitled to the monthly payments and had not defrauded the government. Rather, the defendant had defrauded the social security recipient. Id. In this case, however, Biagas wrongfully submitted false time sheets to both A-Temps and Harris County, causing Harris County to release the funds.
Biagas correctly observes in his brief that in Freeman v. State, 707 S.W.2d 597, 603 (Tex.Crim.App.1986), the Court of Criminal Appeals stated that "the key to answering the question of which person has the greater right to possession of the property is who, at the time of commission of the offense, had the greater right to possession of the property." The record here shows that Biagas committed the offense when he forged time sheets and sought and obtained Harris County approval for compensation to him. See Salazar v. State, 711 S.W.2d 720, 723 (Tex.App.-Corpus Christi 1986, pet. ref'd) (); see also Freeman, 707 S.W.2d at 605 ().
Harris County retained control and supervision over the funds absent Biagas's false time sheets, which he submitted to Harris County for approval, and thus we hold that the evidence is legally sufficient to support the jury's...
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