Crum v. State
| Decision Date | 16 January 1997 |
| Docket Number | 14-93-00718-C,14-93-00588-C,Nos. 14-93-00387-C,14-93-00729-CR and 14-94-00818-CR,14-93-00388-C,s. 14-93-00387-C |
| Citation | 946 S.W.2d 349 |
| Parties | Harold T. CRUM, Robert Munkatchy, Garry V. Wilburn, James C. Bond, and Daina Craig Wilburn, Appellants, v. The STATE of Texas, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
Michael Maness, Jack T. Cole, Houston, for appellants in No. 14-93-00387-CR.
Michael Maness, Houston, for appellants in No. 14-93-00388-CR. Michael Maness, Jerome Godinich, Houston, for appellants in No. 14-93-00588-CR.
Michael Maness, James M. Sims, Houston, for appellants in No. 14-93-00718-CR.
Michael Maness, Michael B. Charlton, Keith Hampton, Houston, for appellants in No. 14-93-00729-CR.
Michael B. Charlton, Van E. McFarland, Houston, for appellants in No. 14-94-00818-CR.
William J. Delmore, III, Houston, for appellee.
Before LEE, YATES and O'NEILL, JJ.
MAJORITY OPINION
Appellants were individually charged with the offense of engaging in organized crime. TEX. PENAL CODE ANN. § 71.02. 1 Appellants entered pleas of not guilty and were tried in a joint trial before a jury. The jury found each appellant guilty of engaging in organized crime as alleged in the indictments. The jury assessed punishment for Harold Crum, James Bond, and Daina Wilburn at ten years probation and a $10,000 fine. Robert Munkatchy's punishment was assessed at five years in prison and a $10,000 fine. Garry Wilburn was sentenced to ten years probation and a $10,000 fine for count one and five years in prison and a $10,000 fine for the second count. In fifteen points of error, appellants challenge (1) the sufficiency of the evidence to support their convictions; (2) the indictments; (3) the charge to the jury; (4) the trial court's denial of Munkatchy's and Daina Wilburn's motions for severance; and (5) the admission of hearsay statements made by Munkatchy against Daina Wilburn. We affirm.
Appellants were employees or affiliates of ComTec Computer Services, an IBM remarketer. In the computer industry, a "remarketer" is a retailer who can give a customer not only computer equipment, or hardware, but also a line of complementary services such as installation of the equipment, software necessary to achieve the customer's objectives, and training in the use of that software for the customer's employees.
IBM began a program of lease financing for both hardware and complementary services provided by remarketers. A subsidiary of IBM known as IBM Credit Corporation (ICC) provided the capital for the lease financing packages. When a customer applied for lease financing, the customer would submit a credit application to the remarketer that was then forwarded to ICC. After conducting a credit check and assessing the amount of perceived risk of default, ICC would inform the remarketer of the lease rate and the amount of the deposit needed to initiate the lease. Where the customer, usually a small business, was so new it had no credit history, ICC would typically require a deposit equivalent to three months lease payments. Once ICC approved the credit application, it would give the money needed to fund the lease to the remarketer. The remarketer was to use the funds provided by ICC to purchase the computer hardware and to provide the complementary services requested by the customer. The customer, or end-user, would then make lease payments to ICC.
The evidence shows that appellants, through ComTec, abused this value-added lease program in two ways. First, ComTec sold computers to under-capitalized businesses in need of money instead of computers. In other words, ComTec would help the businesses obtain lease financing from ICC by paying the deposit on the lease. ComTec, in turn, purchased computer hardware that the company did not need. ComTec then took the money obtained for the complementary services and "rebated" it to the customer. This scheme served the purpose of getting new customers for ComTec and giving new businesses a loan. If the business failed, ICC bore the loss.
The second way ComTec abused the value-added lease program was to create fictitious companies. In this scheme, ComTec purchased the computers, but did not install them. The money for complementary services was transferred to an account held in the name of the fictitious business customer. Eventually, the fictitious company defaulted on the lease payments, again leaving ICC with the loss. Paul Marshall, the manager of customer financial services at ICC, estimated the loss to ICC from these schemes at between twelve and fourteen million dollars.
Several events led to the discovery of the fraud. ICC first became concerned when it noticed that some of the deposit checks were not written by customers, but by ComTec. Next, at a meeting between Robert Munkatchy, President of ComTec and ICC representatives, Munkatchy proposed that ICC offer venture capital as part of its financing because most start-up companies need capital. An ICC representative informed Munkatchy that ICC did not provide monetary loans.
When the first ComTec customer defaulted, ICC attempted to recover the unused money designated for complementary services. ICC learned that ComTec had given the money directly to the customer in lieu of the complementary services. IBM auditors later learned that between twenty-three and thirty-five of ComTec's customers were fictitious. Paul Marshall testified that 85% of ComTec's customers defaulted on their lease payments.
Specific instances of theft
Horace Sutterer, a small business loan administrator, testified that Munkatchy contacted him through an advertisement Sutterer had placed. Sutterer had certain clients that needed financing but could not meet the Small Business Administration (SBA) guidelines. Munkatchy told him that if the business had a telephone number and needed to purchase computer equipment, he could get the company up to $1.75 in cash per dollar of computer equipment ordered. Munkatchy and Sutterer began to work together to obtain financing for the small businesses through ICC. Sutterer testified that most of the customers ended up with more computer equipment than they needed so they could get the cash. Munkatchy charged the highest price for the computers that IBM would allow. When a customer pointed out that he could get the computer cheaper, Munkatchy "always came back to the point of cash." Several small businesses that did not meet bank financing or SBA financing qualifications were approved by ICC. Sutterer testified that Daina Wilburn and James Bond were listed as the salespersons on several of the applications sent to ICC.
Charter Bank's records reveal that Garry Wilburn provided the escrow needed by a fictitious company named A-1 Equipment. James Bond was listed as the owner of A-1 Equipment. Garry Wilburn wrote a check on an McCorp account to cover the escrow for A-1 Equipment. 2 The total amount of the lease funded by ICC was $137,183. Of this amount, $53,912 was designated for hardware and $83,271 was designated for complementary services. After deducting the price of the equipment and all of the complementary services rendered by ComTec, Pamela Steinmetz, ComTec's bookkeeper, issued a check to A-1 Equipment for $77,150. That check was endorsed by James Bond. Ms. Steinmetz testified that the records show that the equipment was left at the front desk to be picked up by James Bond. Steinmetz did not know if the equipment was ever installed.
Ms. Steinmetz further testified that she frequently advanced escrow money to customers at Munkatchy's and Daina Wilburn's direction. She stated that Munkatchy told her to deduct the escrow money from the complementary services money received from ICC.
Harold Crum participated in a fraudulent lease to H.T.C. Company. In June, 1990, ComTec provided escrow money to H.T.C. Company. On July 2, 1990, H.T.C. Company wrote an escrow check to ICC for $16,989. The H.T.C. Company escrow check was written by Harold Crum. ICC then funded a lease finance account for H.T.C. Company in the amount of $226,310, of which $94,272 was for equipment and the remainder was dedicated for complementary services. After making deductions for the equipment, one year's maintenance, the escrow money that had been advanced, and a few other incidental items, H.T.C. received a check for $104,537.50. The file contains a letter from ComTec written by Daina Wilburn to Harold Crum at H.T.C. Company in which ComTec agreed to purchase unspecified equipment from H.T.C. Company for $141,990, out of the lease proceeds paid by ICC to ComTec. However, no payment was made by ComTec and no equipment was delivered by H.T.C Company.
John Gilbert owned two used car businesses called Three G Brokers and I-Jon Enterprises. In March or April of 1990, Garry Wilburn, Daina Wilburn, Harold Crum, and George Thurman approached Gilbert to discuss a "venture with IBM." Thurman told Gilbert he could lease computer equipment and receive a substantial amount of money in the process. Gilbert was told it would cost him no money to get involved in the program; he would just place a computer order under one of his company names and would receive cash. Gilbert, Crum, and Springer operated under the name of G.C.S. Enterprises.
Leonard Claus testified that he signed leases for IBM equipment on behalf of John Gilbert under Gilbert's company names. He further testified that the companies never used the computer equipment. Claus testified that Harold Crum told him to bring in friends to G.C.S. Enterprises and if they signed up for an IBM lease, they would receive twenty to thirty thousand dollars in cash. Claus also testified that he overheard Daina and Garry Wilburn, Harold Crum, John Gilbert, and Mr. Springer discussing making up company names.
In their first point of error, appellants claim the evidence is...
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