Dockstader v. State

• Decision Date: 31 July 2007
• Docket Number: No. 14-06-00182-CR.,14-06-00182-CR.
• Citation: 233 S.W.3d 98
• Parties: Harvey Joseph DOCKSTADER, Jr., Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

233 S.W.3d 98

Harvey Joseph DOCKSTADER, Jr., Appellant v. The STATE of Texas, Appellee.

No. 14-06-00182-CR.

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

July 31, 2007.

Rehearing Overruled September 20, 2007.

Henry W. Curtis, Houston, TX, for appellants.

Jessica Alana Caird, Houston, TX, for appellees.

Panel consists of Justices YATES, ANDERSON, and HUDSON.

OPINION

JOHN S. ANDERSON, Justice.

A jury convicted appellant Harvey Joseph Dockstader, Jr. of promoting a pyramid promotional scheme and assessed punishment at two years' incarceration in the Texas Department of Criminal Justice, State Jail Division, and a $10,000 fine. Appellant raises nine issues on appeal. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant is the founder of an organization known as Elite Activity. Since 2001, Elite Activity has maintained an internet website where people are invited to participate in a "cycle of abundance" through the giving and receiving of monetary "gifts." Participation in Elite Activity is based on the payment of money, the receipt of money, and the recruitment of new members. No products or services are sold. For a monthly fee, participants in Elite Activity may subscribe to the organization's internet service and track their progression through pyramid-shaped "panels" of "gifting." Appellant traveled to numerous churches across the southern United States to speak about Elite Activity, which he claims is inspired by God and based on the teachings of the Bible.

On June 24, 2005, in response to the arrest of one of Elite Activity's participants, appellant held a press conference on the front steps of the Harris County Criminal Justice Center. In his statement to the media, appellant repeatedly invited people to participate in Elite Activity. A videotaped excerpt of appellant's statement was broadcast on the Channel 39 evening news in Houston. On July 1, 2005, a Harris County grand jury indicted appellant. The indictment alleged that "on or about June 24, 2005, [appellant] did then and there unlawfully, intentionally and knowingly contrive, prepare, establish, operate, advertise, sell, and/or promote a pyramid promotional scheme." Appellant was convicted and sentenced to the maximum punishment allowed by law. This appeal followed.

In nine issues, appellant challenges the constitutionality of the pyramid promotional scheme statute, the legal and factual sufficiency of the evidence, the trial court's refusal to include a proposed mistake of fact defense instruction in the jury charge, and the conduct of the trial judge which appellant claims denied him his right to a fair and impartial trial.

DISCUSSION

I. Appellant Failed to Preserve His Constitutional Challenges to the Pyramid Promotional Scheme Statute

In his first, fourth, fifth, and sixth issues, appellant argues that section 17.461 of the Texas Business and Commerce Code ("the pyramid promotional scheme statute") is unconstitutional as applied to appellant. Appellant contends the pyramid promotional scheme statute violates his rights to free speech, free association, and free exercise of religion, pursuant to the United States and Texas Constitutions. See U.S. Const. AMEND. I; TEX. CONST. art. I, §§ 6, 8, 19, 27.

A party may challenge a statute on the grounds that it is facially unconstitutional or unconstitutional "as applied" to the party. Curry v. State, 910 S.W.2d 490, 496 (Tex.Crim.App.1995) (en banc); Briggs v. State, 789 S.W.2d 918, 923-24 (Tex.Crim.App.1990). In order to review an attack on the constitutionality of a statute as applied, the party challenging the statute must have raised the issue in the trial court. Tex.R.App. P. 33.1(a); Curry, 910 S.W.2d at 496; King v. State, 174 S.W.3d 796, 815 (Tex.App.-Corpus Christi 2005, pet. ref'd). Appellant's first, fourth, fifth, and sixth issues challenge the constitutionality of the pyramid promotional scheme statute "as construed and applied to appellant." Our review of the record shows that appellant did not object to the constitutionality of the statute at trial. Appellant argued to the jury that his conduct was justified by his religious beliefs. However, he did not move to quash the indictment or present his constitutional arguments to the court, and he did not request a ruling that the statute was unconstitutional. Because no specific, timely objection was made, appellant's challenges to the constitutionality of the pyramid promotional scheme statute as applied to appellant were not preserved for our review. See Tex.R.App. P. 33.1; Curry, 910 S.W.2d at 496; King, 174 S.W.3d at 815. Additionally, appellant's brief contains no arguments in support of his fifth and sixth issues and thus presents nothing for our review. See Tex.R.App. P. 38.1(h) (An appellant's brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record."). Appellant's first, fourth, fifth, and sixth issues are overruled.

II. The Evidence is Legally and Factually Sufficient to Sustain Appellant's Conviction

In his seventh issue, appellant argues the evidence is factually insufficient to support his conviction. Appellant's eighth issue challenges the legal sufficiency of the evidence, and his second issue contends the trial court erred in denying his motion for instructed verdict. Because a complaint about the denial of a motion for instructed verdict is an attack upon the legal sufficiency of the evidence, we address appellant's second and eighth issues together. McDuff v. State, 939 S.W.2d 607, 613 (Tex.Crim.App.1997); Myles v. State, 946 S.W.2d 630, 636 (Tex.App.-Houston [14th Dist.] 1997, no pet.).

A. Standards of Review

In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex.Crim. App.2005). The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness's testimony. Jones v. State, 984 S.W.2d 254, 257 (Tex.Crim.App.1998). We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App.1993); Harris v. State, 164 S.W.3d 775, 784 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd).

In a factual sufficiency review, we consider all the evidence in a neutral light. Prible v. State, 175 S.W.3d 724, 730-31 (Tex.Crim.App.2005). The evidence may be factually insufficient in two ways. Id. at 731. First, when considered by itself, evidence supporting the verdict may be so weak the verdict is clearly wrong and manifestly unjust. Id. Second, where the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. In conducting a factual sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App.1996). Our analysis must consider the evidence appellant claims is most important in allegedly undermining the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).

B. Analysis

Under the pyramid promotional scheme statute, a person commits an offense if the person contrives, prepares, establishes, operates, advertises, sells, or promotes a pyramid promotional scheme. Tex. Bus. & Com.Code Ann. § 17.461(c). "Pyramid promotional scheme" means a plan or operation by which a person gives consideration for the opportunity to receive compensation that is derived primarily from a person's introduction of other persons to participate in the plan or operation rather than the sale of a product by a person introduced into the plan or operation. Id. § 17.461(a)(6). "Compensation" means payment of money, a financial benefit, or another thing of value. Id. § 17.461(a)(1). The term does not include payment based on the sale of a product to a person, including a participant, who purchases the product for actual use or consumption. Id. "Product" means a good, a service, or intangible property of any kind. Id. § 17.461(a)(4).

1. Elite Activity is a Pyramid Promotional Scheme

We first consider whether the evidence is legally and factually sufficient to support the jury's finding that Elite Activity is a pyramid promotional scheme. Pastor Sean Riley of the Secret Place International Church testified he became involved with Elite Activity after watching a D.V.D. given to him by another pastor. Riley testified appellant came to Secret Place Church and introduced himself as the founder of Elite Activity. Riley began promoting Elite Activity and was arrested and charged with promoting a pyramid promotional scheme. At appellant's trial, Riley testified about the structure and purpose of Elite Activity. Riley testified new members of Elite Activity were invited to give a $100 "gift" to the senior member of a "panel" or "board" to begin their participation. A panel consisted of fifteen participants: eight "freshman," four "sophomores," two "juniors," and one "senior." An individual became a freshman by contributing $100 to the senior member of the panel. Elevation in status could be obtained only by recruiting additional people to participate. Recruiting two new people "pushed" the freshman invitee to the level of sophomore. To move from sophomore to junior, each of the two people recruited by the invitee had to recruit two more people. After becoming a senior, the invitee received the $800 in gifts paid by the freshman members of the panel. The invitee then restarted as a freshman on a different panel by making a new gift and recruiting new members. The amount of...