Hefner v. State

• Decision Date: 27 July 1987
• Docket Number: No. 05-85-01211-CR,05-85-01211-CR
• Citation: 735 S.W.2d 608
• Parties: Stephen F. HEFNER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 608

735 S.W.2d 608

Stephen F. HEFNER, Appellant, v. The STATE of Texas, Appellee.

No. 05-85-01211-CR.

Court of Appeals of Texas Dallas.

July 27, 1987.

R.J. Hagood, Denison, for appellant.

Jonathan H. Kamras, Sherman, for appellee.

Before STEPHENS, McCLUNG and ROWE, JJ.

STEPHENS, Justice.

Stephen F. Hefner was convicted by a jury of theft of $750 or more but less than $20,000. The jury assessed punishment at ten years' confinement and recommended to the court that the sentence be probated. The trial court probated Hefner's sentence and, as a condition of Hefner's probation, ordered that Hefner pay $35,500 in restitution to the Grayson County Attorney's office. Hefner asserts fourteen points of error on appeal. Hefner argues that the trial court erred: (1) by including in the charge to the jury a definition not supported by the evidence; (2) in ordering appellant to pay $35,500 in restitution; (3) in overruling appellant's motion for an instructed verdict; (4) in refusing appellant's request for a mistrial; (5) by entering a judgment of conviction because the evidence is insufficient to support the conviction; (6) in failing to require the State to elect the theory relied upon regarding the complainant's lack of effective consent; (7) in allowing the court reporter to read back testimony; (8) in admitting a particular letter into evidence; (9) in refusing to give a limiting instruction regarding the letter the trial court admitted into evidence; (10) in failing to charge the jury on the defense of mistake of fact; (11) in failing to charge the jury on the defense of mistake of law; (12) in failing to instruct the jury that under the Disciplinary Rules of the State Bar of Texas, a lawyer may advance a good faith claim for the extension, modification, or reversal of existing law; (13) in failing to instruct the jury that an attorney, under the Disciplinary Rules of the State Bar of Texas, shall not fail to carry out a contract for employment entered into with a client for professional services; and (14) because the evidence is insufficient to support the conviction. We agree with Hefner's second point of error; accordingly, we order that the probation order be modified to reflect The evidence is undisputed that the complainant brought $67,000 to Hefner's office on April 5, 1984. Hefner's law firm was, at that time, representing the complainant in simultaneous civil ligation against complainant's children in state and federal courts. The suits between complainant and her children centered upon the administration of complainant's husband's estate and testamentary trust. The state court, sitting in probate, ordered the complainant to deliver certain assets into the registry of the court. It is unclear whether the order included the $67,000 complainant brought to Hefner's office, but evidently complainant assumed that it did. Complainant brought $54,000 in cash, and $13,100 in countersigned travelers checks to Hefner's office, apparently in an attempt to avoid the court order, which complainant perceived as her children's attempt to obtain her money. Hefner, or Hefner's office manager, accepted the $67,000 from complainant.

that Hefner, as a condition of probation, pay restitution of $20,000 to the Grayson County Attorney's Office. We disagree with each of Hefner's remaining points of error. Consequently, we affirm the judgment of the trial court as modified.

A receipt for the $67,000, which was entered into evidence, contains the following handwritten notation signed by Hefner, "Received of [complainant] as her property to be held for safekeeping & subject to her direction." Hefner testified that the complainant gave him the money "for safekeeping " (emphasis added). Hefner immediately deducted $7,500 from complainant's cash and had that amount deposited in the law firm's operating account "for services rendered and to be rendered", on the state and federal suits. Complainant received a receipt for the $7,500 to that effect. The following day Hefner had a limousine take an employee and the remaining $59,500 in cash and travelers checks to Oklahoma City, where the money was placed in a safety deposit box rented in his office manager's sister's name.

Despite Hefner's agreement to hold complainant's money in safekeeping subject to her direction, on various occasions Hefner's employees went to Oklahoma City and removed quantities of complainant's money from the safety deposit box; drove to Dallas with complainant's money, and bought cashier's checks payable to Hefner or Hefner's law firm; and then deposited the cashier's checks in Hefner's law firm's operating account. The total amount of the checks deposited to this account was at least $40,000. Hefner's office manager testified that either prior to or subsequent to all but the last transfer of money from the safety deposit box to the firm's operating account, she discussed the transfer with complainant. She also testified that during these discussions she wasn't sure she was "getting through" to complainant. By June 6, a mere two months after Hefner received the $67,000 from complainant, handwritten records of the law firm show that only the $13,100 in travelers check remained in the Oklahoma City safety deposit box.

After two of the transfers, complainant was given a portion of the sum withdrawn from the Oklahoma City safety deposit box. Also, on several occasions, complainant received handwritten receipts from Hefner's office manager indicating that her bill with Hefner's law firm had been credited. The receipts given complainant by Hefner's office manager totaled $21,100 (plus the initial $7,500 receipt). At least once, money was transferred from the Oklahoma City safety deposit box to the Hefner firm's operating account via the bizarre route set forth above and complainant was given no receipt at all. Nor was said transfer "discussed" with complainant by Hefner's office manager.

In August, complainant filed motions in both state and federal courts to replace Hefner's law firm with another attorney. Although the motion in federal court was still pending at the time of Hefner's trial, the state court granted the motion presented to it. Not long thereafter, an attorney for complainant's children located and seized the contents of the safe deposit box pursuant to a court order. When the children's attorney seized the box, it contained only $13,100 in traveler's checks. After In his first point of error, without citing any cases in support of his position, Hefner argues that the trial court erred in including the underlined portion of the following instruction in the charge:

this discovery, Hefner received a letter from complainant's substituted counsel demanding the return of $48,900, the amount of cash which it was claimed that Hefner still held in trust for complainant. Hefner refused to return the money on the ground that complainant's substituted counsel had no authority to act for complainant because the appointment was void as the court had no jurisdiction. The complainant herself then demanded the return of the cash in a letter addressed to appellant delivered to his law firm via certified mail. Appellant did not respond to complainant's demand, and the present prosecution ensued.

"Consent" means assent in fact, whether express or apparent.

The term "effective consent" includes consent by a person legally authorized to act for the owner. Consent is not effective if:

1. Induced by deception or coercion:

2. Given by a person who by reason of mental disease or defect, is known by the actor to be unable to make reasonable property dispositions.

The record reflects that Hefner made a proper, timely objection to the inclusion in the charge of the above underlined portion of the instruction on the basis that the objectionable portion of the instruction was not supported by the evidence. We disagree with Hefner's contention.

The charge should instruct the jury as to the law applicable to every theory within the scope of the indictment which is established by the evidence. Rider v. State, 735 S.W.2d 291, 293 (Tex.App.--Dallas 1987); Goodwin v. State, 694 S.W.2d 19, 27 (Tex.App.--Corpus Christi 1985, pet. ref'd); see also Cantu v. State, 170 Tex.Cr.R. 375, 341 S.W.2d 451, 452 (Tex.Crim.App.1960). Hence, if complainant's ineffective consent was raised by the evidence, the trial court properly included the above ineffective consent instruction in its charge to the jury.

Hefner, at trial, did not contest the fact that the law firm's employees had taken complainant's cash and deposited it for credit to the firm's operating account. Neither did Hefner contest the fact that he authorized his office manager to oversee the arrangements resulting in the transfers. Hefner, instead, admitted the above facts but defended on the theory that the complainant manifested her consent to the transfers as payments against the firm's legal fees. In support of this theory Hefner relied on the hand-written receipts executed by the office manager and given to complainant, indicating that the firm had received a total of $21,200 from the complainant for "services rendered." Hence, whether complainant effectively consented to the transfers was the primary fact issue at trial. Clearly the issue of effective consent was raised by the evidence. Therefore, the trial court did not err in including the complained of definition.

Furthermore, the definition of which Hefner complains substantially tracks the Penal Code definition. The statutory definition of "effective consent" is set forth below:

(4) "Effective consent" includes consent by a person legally authorized to act for the owner. Consent is not effective if:

(A) induced by deception or coercion;

(B) given by a person the actor knows is not legally authorized to act for the owner;

(C) given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make...