Gemoets v. State

• Decision Date: 09 August 2001
• Docket Number: No. 14-97-00174-CR.,14-97-00174-CR.
• Citation: 116 S.W.3d 59
• Parties: Thomas Henry GEMOETS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

116 S.W.3d 59

Thomas Henry GEMOETS, Appellant, v.The STATE of Texas, Appellee.

No. 14-97-00174-CR.

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

August 9, 2001.

Arnold S. Cohn, Houston, David N. Anderson, for appellant.

William J. Delmore, III, Dist. Atty's Office, Harris County, Houston, for appellee.

Panel consists of Justices LEE, HUTSON-DUNN, and AMIDEI.^*

OPINION

MAURICE AMIDEI, Justice.

Thomas Henry Gemoets appeals his jury conviction for engaging in organized criminal activity by committing theft of over $200,000.00.Tex.Pen.Code Ann. § 71.02(a)(1)(Vernon 1994& Supp.2000).The jury assessed his punishment at ten years' imprisonment and a $10,000.00 fine.In six issues, appellant contends: (1) and (2) the evidence is legally and factually insufficient to sustain his conviction; (3)the trial court unreasonably limited voir dire; (4)the trial court erred by commenting to the jury panel that they could consider appellant's failure to call witnesses on his behalf; (5)the trial court erroneously denied appellant's motion to quash the indictment; and (6)the trial court erroneously denied appellant's motion to sever.We affirm.

BACKGROUND

Appellant was indicted for engaging in organized criminal activity by committing theft from five insurance companies of over $200,000.00 between October 9, 1993, and January 19, 1995.He was jointly tried with his codefendants Tan Kien Tu(Tu), Randy Jarnigan(Jarnigan), Alfonso Gonzalez(Gonzalez), and Leighann Phan(Phan).Tu, Jarnigan, and Gonzalez have also appealed their convictions to this Court, as follows: Tan Kien Tu v. State, C14-97-00436-CR, 2001 WL 893631(Tex. App.—HoustonAug. 9, 2001);Randy Jarnigan v. State,57 S.W.3d 76(Tex.App.2001);andAlfonso Gonzalez v. State, C14-97-00745-CR, 2001 WL 893699(Tex. App.—HoustonAug. 9, 2001).

Tu owned two medical clinics where appellant and Gonzalez treated persons involved in staged automobile accidents.Jarnigan was an attorney who represented the persons involved in the staged automobile accidents.Jarnigan filed claims with the insurance companies, settled the claims, and deposited the settlement funds in his lawyer's trust account.Leighann Phan was an employee at one of the medical clinics.The trial, pretrial and posttrial hearings took over a month, and the combined trial produced a voluminous record consisting of twenty-two volumes of reporter's records, four volumes of clerk's records (for this appellant only), fifty-five volumes of exhibits, seven videotapes, and one audiotape.

SUFFICIENCY OF THE EVIDENCE

In his first issue, appellant asserts that the evidence is legally insufficient to support his conviction because the State did not prove he participated in a combination or committed theft of over $200,000.00.As a subpoint to his first issue, appellant further contends the trial court erred by denying his motion for a directed verdict.In his second issue, he contends that the same evidence is factually insufficient to sustain his conviction.

Standard of Review

In regard to the trial court's denial of appellant's motion for an instructed verdict, it is well settled that a challenge to the ruling on a motion for instructed verdict is in actuality a challenge to the sufficiency of the evidence to support the conviction.If the evidence is sufficient to sustain the conviction, then the trial judge did not err in overruling the motion for instructed verdict.Madden v. State,799 S.W.2d 683, 686(Tex.Crim.App.1990);Sanders v. State,814 S.W.2d 784, 786(Tex. App.—Houston[1st Dist.]1991, no pet.).

In reviewing the legal sufficiency of the evidence, we consider all the evidence, both State and defense, in the light most favorable to the verdict.Houston v. State,663 S.W.2d 455, 456(Tex.Crim.App.1984);Garrett v. State,851 S.W.2d 853, 857(Tex.Crim.App.1993).In reviewing the sufficiency of the evidence in the light most favorable to the verdict or judgment, the appellate court is to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.Jackson v. Virginia,443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979);Ransom v. State,789 S.W.2d 572, 577(Tex.Crim.App.1989), cert. denied,497 U.S. 1010, 110 S.Ct. 3255, 111 L.Ed.2d 765(1990).This standard is applied to both direct and circumstantial evidence cases.Chambers v. State,711 S.W.2d 240, 245(Tex.Crim.App.1986).The jury is the exclusive judge of the facts, credibility of the witnesses, and the weight to be given to the evidence.Chambers v. State,805 S.W.2d 459, 462(Tex.Crim.App.1991).In conducting this review, the appellate court is not to re-evaluate the weight and credibility of the evidence, but act only to ensure the jury reached a rational decision.Muniz v. State,851 S.W.2d 238, 246(Tex.Crim.App.1993);Moreno v. State,755 S.W.2d 866, 867(Tex. Crim.App.1988).In making this determination, the jury can infer knowledge and intent from the acts, words, and conduct of the accused.Dues v. State,634 S.W.2d 304, 305(Tex.Crim.App.1982).

The sufficiency of the evidence to support a conviction should no longer be measured by the jury charge actually given but rather measured by the elements of the offense as defined by a hypothetically correct charge.SeeCurry v. State,975 S.W.2d 629, 630(Tex.Crim.App.1998)."Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability and adequately describes the particular offense for which the defendant was tried."Malik v. State,953 S.W.2d 234, 240(Tex.Crim.App.1997).

Under Clewis v. State,922 S.W.2d 126, 133(Tex.Crim.App.1996), a court of appeals reviews the factual sufficiency of the evidence when properly raised after a determination that the evidence is legally sufficient.Id.In conducting a factual sufficiency review, the court of appeals views all the evidence without the prism of "in the light most favorable to the prosecution" and sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.Id.In conducting a factual sufficiency review, the court of appeals reviews the fact finder's weighing of the evidence and is authorized to disagree with the fact finder's determination.This review, however, must be appropriately deferential so as to avoid an appellate court's substituting its judgment for that of the jury.If the court of appeals reverses on factual sufficiency grounds, it must detail the evidence relevant to the issue in consideration and clearly state why the jury's finding is factually insufficient.The appropriate remedy on reversal is a remand for a new trial.Id.

A factual sufficiency review must be appropriately deferential so as to avoid the appellate court's substituting its own judgment for that of the fact finder.Santellan v. State,939 S.W.2d 155, 164(Tex.Crim.App.1997).This court's evaluation should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility of witness testimony.Id.The appellate court maintains this deference to the fact findings, by finding fault only when "the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust."Id.

The court of criminal appeals has recently clarified Clewis addressing the factual sufficiency standard of review.SeeJohnson v. State,23 S.W.3d 1, 11(Tex. Crim.App.2000).The court of criminal appeals held, in pertinent part:

We hold, therefore, that our opinion in Clewis is to be read as adopting the complete civil factual sufficiency formulation.Borrowing in part from Justice Vance's concurring opinion in Mata v. State,939 S.W.2d 719, 729(Tex.App.-Waco 1997, no pet.), the complete and correct standard a reviewing court must follow to conduct a Clewis factual sufficiency review of the elements of a criminal offense asks whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.

Johnson,23 S.W.3d at 11.

Discussion

Under issue one, appellant argues there is no evidence of his participation in a combination or that he committed theft of over $200,000.00.He argues that the state investigator, Bryan Vaclavik, testified that appellant was paid wages of $1,000.00 a week and received $53,000.00 over a 15 month period.Mr. Vaclavik did not testify that appellant received any money from the claims paid by the insurance companies.

The evidence

Deputy Patberg worked undercover as a participant in a staged auto accident set up by Angie Mong Nguyen(Angie) in March 1994.Patberg stated the staged accidents were always at night and involved a "boy car" which was the car that was at fault, and was driven by a boy who was alone.The car that was struck by the boy car was called the "girl car" and had a minimum of four occupants.The accident was normally a "T-bone collision"[the boy car struck the girl car on the side of the car], and the driver of the boy car would admit fault to the investigating police officer.Other undercover officers videotaped the staged accident in which Patberg was in the girl car.After the accident, Patberg and the other occupants were paid a total of $600.00 for their participation.Patberg was directed to see appellant at his clinic and tell the receptionist that he was "sent there by Angie to see the doctor."Patberg filled out some forms and a technician took his blood pressure and x-rayed him.He saw appellant who asked him if he had been in an automobile accident.Appellant did not examine Patberg, ask him any questions, or prescribe any medication.

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