Brown v. State

• Citation: 468 S.W.3d 158
• Decision Date: 18 November 2015
• Docket Number: NO. 14–13–00839–CR,14–13–00839–CR
• Parties: Patrick Marcel Brown, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

468 S.W.3d 158

Patrick Marcel Brown, Appellant

v.The State of Texas, Appellee

NO. 14–13–00839–CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed May 28, 2015

Discretionary Review Refused November 18, 2015

On Appeal from the 262nd District Court, Harris County, Texas, Trial Court Cause No. 1382169

Nicolas R. Hughes, Houston, TX, for the Appellant.

Heather Hudson, Houston, TX, for State.

Panel consists of Justices Boyce, Jamison, and Donovan.

OPINION

John Donovan, Justice

Appellant, Patrick Marcel Brown, appeals his conviction for falsely holding himself out as a lawyer. He was charged by indictment with violating Section 38.122. SeeTex. Penal Code Ann. § 38.122 (West, Westlaw through 2013 3d C.S.). A jury found appellant guilty, and the trial court sentenced him to five years' confinement.

In six issues, appellant contends (1) Section 38.122 is unconstitutional, (2) the evidence is legally insufficient to support the conviction, (3) in voir dire examination, the State made misstatements of law concerning Section 38.122, (4) the trial court erred by denying a request for a jury instruction under Texas Penal Code Section 6.01(c), (5) the trial court erred by denying appellant's motion to quash the indictment, and (6) Appellant was provided insufficient notice of extraneous instances of “falsely holding oneself out as a lawyer.” We affirm.

I. Sufficiency of the Evidence

In his second issue, appellant contends the evidence was legally insufficient to support his conviction.

When reviewing the sufficiency of the evidence, we view all evidence in the light most favorable to the verdict and determine, based on that evidence and any reasonable inferences therefrom, whether any rational fact finder could have found the elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex.Crim.App.2011). This standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Id. Circumstantial evidence is as probative as direct evidence in establishing guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007). Each fact need not point directly and independently to guilt, as long as the cumulative force of all incriminating circumstances is sufficient to support the conviction. Id. We review the sufficiency of the evidence measured by the elements of a hypothetically correct jury charge which sets forth the law as contained in the indictment. Gollihar v. State, 46 S.W.3d 243, 257 (Tex.Crim.App.2001); Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). The indictment alleged as follows:

[Appellant] ... on or about August 10, 2011, did then and there unlawfully, with the intent to obtain an economic benefit for himself from J.C. Romanda, held himself out as a lawyer to J.C. Romanda, and [appellant] was not currently licensed to practice law in this state, any other state, or a foreign country and was not in good standing with the State Bar of Texas and the state bar or licensing authority of any other state or foreign country.

Appellant stipulated that he was not in good standing with the State Bar of Texas or the state bar or licensing authority of any other state or foreign county.

Section 38.122(a) of the Texas Penal Code provides:

A person commits an offense if, with intent to obtain an economic benefit for himself or herself, the person holds himself or herself out as a lawyer, unless he or she is currently licensed to practice law in this state, another state, or a foreign country and is in good standing with the State Bar of Texas and the state bar or licensing authority of any and all other states and foreign countries where licensed.

SeeTex. Penal Code Ann. § 38.122(a).

The statute does not include alternative “manner and means.” See id. Therefore “[t]he manner or means by which a person holds himself out as a lawyer is not material and, therefore, would not be included in a hypothetically correct charge.” Celis v. State, 354 S.W.3d 7, 20 (Tex.App.–Corpus Christi 2011), aff'd416 S.W.3d 419 (Tex.Crim.App.2013) (citing Rodriguez v. State, 336 S.W.3d 294, 299 (Tex.App.–San Antonio 2010, pet. ref'd)). Thus, the elements of a hypothetically correct jury charge critical to this appeal are whether appellant held himself out as a lawyer with intent to obtain an economic benefit.

The State's evidence demonstrated that Romanda had begun to negotiate his first house purchase. Issues with repairs and associated expenses arose, the option period on the sale expired, and Romanda no longer desired to purchase the house. Romanda testified he was concerned he would lose the money he had placed in escrow. Romanda felt he was being forced to purchase the house and that, if he did not purchase at the original price, he might be sued. The seller's attorney contacted Romanda. This contact concerned Romanda because he began to consider there may be legal expenses associated with further handling of the house purchase. Romanda began looking for legal advice. A friend mentioned he knew a real estate attorney, and that friend provided appellant's information to Romanda.

Romanda testified he called appellant and explained to him that he was worried he might face a lawsuit if he did not execute the contract and that he wanted to be sure to avoid being sued. Appellant responded with an explanation of the negotiation process, reasons for contract termination, and what reasons and what forms could be used to cancel a contract. Romanda admitted he never asked appellant whether he was an attorney, and that after his initial discussions with appellant, Romanda believed he had hired an attorney.

Romanda testified he and appellant had significant contact, mostly over the phone or via email. In one of their first telephone calls, they discussed the payment of legal fees. Appellant told him not to worry about it and that, if Romanda backed out of the contract, appellant would represent Romanda as the agent for a new house and that he would be paid his legal fees out of the commission paid to appellant's wife, who would be the actual real estate agent on the possible purchase.

Romanda also testified about various websites for people working with their mortgages, trying to renegotiate or having other problems. One of those websites included contact information for “Patrick Brown, managing partner PCC Marcel & Associates, LLC.” Romanda believed that was the law firm where appellant was employed because he found that information in the contact section of various legal websites.

Romanda testified that he appeared at the first closing with his real estate agent. Romanda requested appellant attend the closing as his lawyer to ensure things went smoothly. After this initial meeting, the attorney for the seller contacted Romanda asking for the contact information for his attorney. Romanda asked appellant what he should provide. Appellant responded that Romanda should use appellant's “PCC Marcel” contact information.

The State presented an email, sent by appellant to Romanda, stating:

You can let Jeff [the mortgage broker helping Romanda] know I am good with our conversation and I understand about the privacy law. He was aware that I was your counsel so information provided to me is privaledge (sic), so it was fine for him to disclose information.

The State also proffered two additional email communications in which Romanda provided appellant's contact information to the seller's attorney, as Romanda's lawyer. Appellant is copied on those email messages. The record does not contain evidence that appellant explained he was not Romanda's lawyer. Finally, evidence was admitted of Romanda's payment to appellant for legal services—a check in the amount of $5,000, with the memo line noting “for attorney fees.”

We hold the evidence was legally sufficient to support appellant's conviction. We overrule appellant's second issue.

II. Jury Voir Dire

In his third issue, appellant contends that voir dire examination was improper because the State misstated the law in a hypothetical used when questioning venirepersons and that the error was compounded by the State in closing argument.

As a general rule, parties are allowed to use hypotheticals during voir dire. SeePineda v. State, 2 S.W.3d 1, 10 (Tex.App.–Houston [1st Dist.] 1999, pet. ref'd). We review for abuse of discretion the trial court's ruling on an objection to a hypothetical. SeeThompson v. State, 95 S.W.3d 537, 541 (Tex.App.–Houston [1st Dist.] 2002, no pet.) (citing Parker v. State, 792 S.W.2d 795, 798 (Tex.App.–Houston [14th Dist.] 1990, pet. ref'd)).

During voir dire, appellant contended that the State was misstating the law. Relevant portions of the examination are as follows:

Prosecutor: Okay. At the point where I'm sure glad that I found an attorney, is there a duty for that person to correct that assumption?

Prospective Juror: Oh, yes.

Prosecutor: Anybody think no? Anybody think you can sort of just let it sit there?

Prospective Juror: Well, like the electrician, I do my own work at home. I don't hire anybody else. Does that mean I'm doing it wrong? I mean, if you don't ask me if I'm a lawyer and I'm just telling you I can legally help you, does that mean I'm in the wrong?

Prosecutor: If you're practicing law, it does. If you're doing something that a lawyer is required to do, then, yes What we're here about is somebody representing himself, allowing themselves to be perceived as a lawyer, allowing that to happen. But to answer your question, or to sort of get to it, do you believe that somebody then must say, I am a lawyer in order to be found guilty of this offense?

Prospective Juror: I would love to hear those words.

Prosecutor: I would love to hear those words, too ... The question is, though.... The State doesn't have to prove that the Defendant used specific words. In that indictment nowhere does it say defendant...