King v. State

• Court: Texas Supreme Court
• Writing for the Court: Castillo
• Citation: King v. State, 174 S.W.3d 796 (Tex. 2005)
• Decision Date: 18 August 2005
• Docket Number: No. 13-03-028-CR.,13-03-028-CR.
• Parties: Gayle KING, Appellant, v. The STATE of Texas, Appellee.

174 S.W.3d 796

Gayle KING, Appellant, v. The STATE of Texas, Appellee.

No. 13-03-028-CR.

Court of Appeals of Texas, Corpus Christi-Edinburg.

August 18, 2005.

Rehearing En Banc and Rehearing Overruled November 10, 2005.

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Joseph A. Connors, III, McAllen, for appellant.

Rene A. Guerra, Criminal Dist. Atty., Theodore C. Hake, Asst. Criminal Dist. Atty., Edinburg, for appellee.

Before Justices RODRIGUEZ, CASTILLO and GARZA.

OPINION

Opinion by Justice CASTILLO.

A jury convicted appellant Gayle King of two counts of promoting a pyramid promotional scheme¹ and one count of theft by deception.² The jury acquitted her of five other indicted charges. The trial court sentenced King to three concurrent sentences of two years in a State Jail facility, probated for five years, imposed a fine, and ordered restitution. King raises eight issues on appeal. We affirm.

I. BACKGROUND

In late 2000, a program referred to as Women Helping Women ("WHW"), Original Dinner Partyr ("ODP"), or "birthday club" became popular as a "gifting club." Women who wished to join WHW would pay $5,000 for a "plate," designated as a "gift," with the expectation that their $5,000 gift would be returned to them, multiplied, as other women joined the club and paid the $5,000 gift.³ King's adverse jury verdict rested on two counts of a pyramid promotional scheme and one count of theft.

II. ISSUES PRESENTED

By her eight issues, King complains: (1) the trial court reversibly erred in denying her requested jury charge instruction on a defensive issue; (2) restitution is unsupported in law or fact; (3) section 17.461 of the Texas Business and Commerce Code is unconstitutional; (4) the evidence is legally insufficient; (5) prosecution was selective; (6) the jury charge omitted a requisite knowledge element; (7) the double jeopardy clause barred the punishment assessed; and (8) her motion for new trial should have been granted.

III. LEGAL SUFFICIENCY

By her fourth issue, King asserts that the evidence is legally insufficient to prove the essential elements of (1) a pyramid scheme in Counts 1 and 2, and (2) theft in Count 5. The State counters that the evidence is sufficient to sustain the convictions.

A. Legal Sufficiency Standard of Review

A legal-sufficiency challenge requires us to review the relevant evidence in the light most favorable to the verdict, and then to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim.App.2004) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); see Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003) (en banc); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000) (en banc). This standard is designed to give "full play to the [jury's] responsibility fairly" to "draw reasonable inferences from basic facts to ultimate facts." Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App.2003). We consider all the evidence that sustains the conviction, whether properly or improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App.2001) (citing Garcia v. State, 919 S.W.2d 370, 378 (Tex.Crim.App.1994) (en banc)). Similarly, we consider all the evidence that sustains the conviction, whether submitted by the prosecution or the defense, in determining the legal sufficiency of the evidence. King v. State, 29 S.W.3d 556, 562 (Tex.Crim. App.2000) (en banc); Cook v. State, 858 S.W.2d 467, 470 (Tex.Crim.App.1993) (en banc). In this review, we are not to reevaluate the weight and credibility of the evidence; rather, we act only to ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App.1993) (en banc).

The legal sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997).⁴ This standard of legal sufficiency ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime, rather than a mere error in the jury charge submitted. Id. We then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. 2781; Johnson, 23 S.W.3d at 7.

If we reverse a criminal case for legal insufficiency, we reform the judgment of conviction to reflect conviction for a lesser offense only if a jury charge on the lesser offense was either submitted or requested, but denied. Collier v. State, 999 S.W.2d 779, 782 (Tex.Crim.App.1999). Otherwise, we vacate the judgment of conviction for legal insufficiency and order a judgment of acquittal. Swearingen, 101 S.W.3d at 95.

B. Pyramid Promotional Scheme

1. The Law

"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 from the sale of a product by a person introduced into the plan or operation. Tex. BUS. & COM.CODE ANN. § 17.461(a)(6) (Vernon 2002). "Promoting a pyramid promotional scheme" means (1) inducing or attempting to induce one or more other persons to participate in a pyramid promotional scheme, or (2) assisting another person in inducing or attempting to induce one or more other persons to participate in a pyramid promotional scheme, including by providing references. Tex. BUS. & COM.CODE ANN. § 17.461(a)(5)(A)-(B) (Vernon 2002). "Compensation" means payment of money, a financial benefit, or another thing of value. TEX. BUS. & COM.CODE ANN. § 17.461(a)(1) (Vernon 2002). 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. TEX. BUS. & COM.CODE ANN. § 17.461(a)(4) (Vernon 2002).

2. The Record

Counts 1⁵ and 2⁶ charged King with a pyramid promotional scheme, alleged to have occurred, respectively, on or about October 19, 2000, and November 2, 2001.

a. The State's Witnesses⁷

Sandra Garcia testified that, in late 2000, she became involved with WHW after speaking with her friend, Bartolita Torres. On October 19, 2000, she attended what she thought was a WHW meeting at a residence. Instead, the event was a "gifting party," which Garcia described as "several persons give money to one person and it comes out to either 10 or 20,000." King and two other women received $20,000 in cash each. Garcia signed her name on a list which was passed around for attendees who wished to participate in the future. From Garcia's perspective, King was in charge because she did most of the talking. Using a diagram on an easel to demonstrate the process, King explained that $2,500 was for half a "plate" and $5,000 for a whole "plate," and, "then as people come in, you move out or up ... til you get to the dessert plate and that's when you party."⁸ From King's talk, Garcia understood that, within four to six weeks, in return for $2,500 in cash, the person would receive $10,000; similarly, for $5,000, the person would receive $20,000, provided additional persons participated. Garcia testified, "We were told that we didn't have to take anybody. We didn't have to recruit anybody because people were coming in on their own." King said she had friends from San Antonio and other people who "wanted to get in." When a person paid in someone's name, the "someone" would move from one level to the next. Garcia recalled King stated that the money could be used for college or bills but "not to deposit it at the bank because of taxes." At the October 19, 2000 gathering, Garcia saw her friend Bartolita Torres as "kind of nervous. She was taking her money." Garcia saw Torres give King $5,000 in cash.

On a later date, Garcia gave $2,500 she obtained from her credit card.⁹ Garcia contacted King after concerns arose about the program. King assured her that "it wasn't the same thing, that those were pyramids and this was not a pyramid and it was legal ... that the original dinner party had attorneys... that they were speaking to." At two subsequent meetings, King and two other women said that the "tables were not moving... It was at a standstill." At the meetings, King stated that she had to take a leave of absence from work to concentrate on the program. King encouraged the attendees to "start bringing people in so that the tables could move and the plates could move." Garcia testified that there were no products sold in order to recoup the $2,500 she gave. Garcia never received any money in return for her gift.

Ludivina Vega testified that in October 2000, she attended a meeting at a residence involving a "club of women helping women." At the meeting, King told the attendees that the club was to help people with their debt or college funds for their children. King stated that the program was "legal ... she had her attorneys in the case of emergency." King further stated that the money need not be deposited in the bank "so we didn't have to pay the IRS, for us not to be worried that it could be some kind of fraud." Vega's testimony regarding the fees for the plates and the "gifting" mirrored Garcia's testimony.¹⁰ At one party, Vega saw Torres give $2,500. At another, Torres gave $5,000. After Vega gave $2,500 and received nothing, she called King who told her she would give her the money in December. At a subsequent conversation, King told her she would give Vega the money in January. Vega never received any money.

Enedelia Tijerina testified that, sometime in October 2000, she became involved with WHW after King spoke with employees at her work....