Lee v. State

• Citation: 29 S.W.3d 570
• Decision Date: 12 April 2000
• Docket Number: No. 05-97-02025-CR,No. 05-97-02024-CR,No. 05-97-02023-CR,05-97-02023-CR,05-97-02024-CR,05-97-02025-CR
• Parties: (Tex.App. Dallas 2000) GARY LEE, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Court of Appeals of Texas

Page 570

29 S.W.3d 570 (Tex.App. Dallas 2000)

GARY LEE, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-97-02023-CR

No. 05-97-02024-CR

No. 05-97-02025-CR

In The Court of Appeals Fifth District of Texas at Dallas

April 12, 2000

Publication Ordered July 13, 2000.

On Appeal from the Criminal District Court No. 3 Dallas County, Texas Trial Court Cause Nos. F97-01141-PJ, F97-01172-PJ, F97-02718-WJ

[Copyrighted Material Omitted]

Before Justices Kinkeade, James, and Miller. ¹

OPINION

Kinkeade, Justice.

Gary Lee appeals his convictions for aggregated theft of three checks ($29,000, $25,000, and $8,640) of more than $20,000 but less than $100,000 ("aggregated theft"), securing execution of the $29,000 check by deception ("deception"), and money laundering of the $29,000 check ("money laundering"). The jury found Lee guilty on these three charges (Lee was also charged in a fourth case with securing execution of the $25,000 check by deception, and was found not guilty). The trial court assessed the following punishments: (1) for aggregated theft, ten years' confinement in the state penitentiary and a $10,000 fine; (2) for deception, ten years' confinement in the state penitentiary and a $10,000 fine; and (3) for money laundering, twenty years' confinement in the state penitentiary and a $10,000 fine. In the aggregated theft case, Lee argues in points of error one and three that the evidence is legally insufficient; in points of error two and four that the evidence is factually insufficient; in points of error five and six that the jury charge was "fatally defective"; and in point of error seven that his trial counsel was ineffective. In the deception and money laundering cases, Lee argues common points of error: (1) rule 802 of the Texas Rules of Evidence was unconstitutionally applied in this case; (2) the evidence is legally insufficient; (3) the evidence is factually insufficient; (4) the jury charge is fatally defective; and (5) trial counsel was ineffective. Because the evidence is legally and factually sufficient, Lee waived any complaint to hearsay or rule 802 by failing to make an objection at trial, there was no jury charge error, and his ineffective assistance of counsel complaints are unfounded, we affirm.

Factual Background

Gladys Yoakum was the victim of a home repair scam by Lee. On January 3rd and 6th of 1997, Ms. Yoakum wrote two checks to Lee for $8,640, and $29,000. These checks were made out to "Gary Leeb," Lee's birth name and the name on his Ohio driver's license. In the notation field on these checks, Ms. Yoakum wrote, respectively, "Inside work; siding; roof Rep; nice job" and "Remodeling; Thank you." On January 7, 1997, Ms. Yoakum wrote a $25,000 check to James Herrin, Lee's co-defendant. Ms. Yoakum died before Lee's trial.

Sufficiency of the Evidence

Lee argues the evidence was legally and factually insufficient. In points of error one, two, three, and four in the aggregated theft case, and in points of error two and three in the deception and money laundering cases, Lee claims specifically that the State's insufficient evidence consisted of inadmissible "backdoor hearsay" by Detective Haynes and the uncorroborated accomplice testimony of Herrin, and that the State failed to prove Lee acted as a "party" regarding any of the three thefts.

1. Applicable Facts

Herrin testified he drove Lee to Ms. Yoakum's house on January 7, 1997. Unaware of what Lee intended to do, Herrin waited in the car while Lee went inside. Herrin testified he never met Ms. Yoakum. When Lee returned, he had a $25,000 check, written by Ms. Yoakum, payable to James Herrin. Herrin cashed the $25,000 check for Lee in exchange for $6,250. Lee had previously told Herrin that he had done work on her house, putting on a new roof and some siding and also doing some interior painting. But, after cashing the check, Lee said, "I fucked her," "I got her money," and "She ain't gonna say nothing." Looking at exterior and interior photographs of Ms. Yoakum's house at trial, Herrin testified Lee obviously had not done the work he said he had done. No recent remodeling, roofing, or siding work had been done.

Dallas Police Department Detective Stephen Haynes works for the swindle squad, which investigates swindles against the elderly. An employee of Ms. Yoakum's bank notified Detective Haynes that Ms. Yoakum might be the victim of a home repair scam, as three checks totaling $62,640 had been cashed against her account between January 3rd and 7th. When Detective Haynes interviewed Ms. Yoakum, she was 92 years old. He testified she was very confused and did not understand what had happened or why she had written the checks. Ms. Yoakum indicated to Haynes that she was nearly blind. Based on his conversation with her, Detective Haynes pursued the investigation. After learning the names written on the checks, he showed Ms. Yoakum photos of potential suspects, including Herrin and Lee. Haynes testified he decided to investigate Lee after this interview. Also during his interview, Haynes inspected Ms. Yoakum's house and noted there had been no recent interior or exterior repair or remodeling done.

Lee was identified by bank employees and bank surveillance photographs as the man who presented the $8,640 and the $29,000 checks at Ms. Yoakum's bank. Bank employee Evelyn Pavone testified she was unable to give Lee cash for the $29,000 check he presented because the bank had insufficient cash on hand at that time. Although she offered him a cashier's check, Lee became agitated and insisted she give him cash, stating, "I need the money." However, Lee finally agreed to a cashier's check. Pavone also testified that when she called Ms. Yoakum to confirm the check, Ms. Yoakum seemed confused and did not know who Pavone was.

Abdul Jetpuri, owner of a check cashing business, testified that a regular customer, John Stacy, called to tell him Lee was coming to cash a check. Stacy said he knew Lee and the check Lee was bringing was a good check. Jetpuri told Stacy he would still have to verify the check regardless of Stacy's personal reference. Lee later brought the $29,000 cashier's check to Jetpuri who cashed it after verifying with the bank there was no stop-payment on it.

Lee testified he cashed the checks as a favor to his long-time friend John Stacy. Stacy had the checks made out to Lee who cashed them because Stacy had lost his driver's license and had no identification to cash the checks. Lee testified he never met Ms. Yoakum and had never been to her house.

Stacy testified for the defense, but his version of the events differed from Lee's. Stacy testified on cross-examination he had heard of a woman named Gladys Yoakum but had never met her, never received a check from her, never asked anyone to go to her house to get a check from her, and never helped anyone go to her house and get a check from her. Lee called Stacy to ask where he could cash a cashier's check (Stacy could not remember if the amount was for $28,000 or $29,000). Stacy told him he could cash the check anywhere, but when Lee said he had no driver's license, Stacy told him to go to Jetpuri's establishment.

2. Standards of Review

When reviewing legal sufficiency of the evidence, this Court looks to whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt, viewing the evidence in the light most favorable to the prosecution. Geesa v. State, 820 S.W.2d 154, 155 (Tex. Crim. App. 1991). The jury is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984). The jury is free to accept or reject all or any part of a witness's testimony. Id; Dumas v. State, 812 S.W.2d 611, 615 (Tex. App.-Dallas 1991, pet. ref'd). This Court is only to ensure that the jury reached a rational conclusion; not to re-evaluate the weight and credibility of the evidence. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). Contradictions in witnesses' testimony do not destroy the sufficiency of the evidence. Goldstein v. State, 803 S.W.2d 777, 790 (Tex. App.-Dallas 1991, pet. ref'd).

The Court of Criminal Appeals has recently held that the "complete and correct" factual sufficiency review requires examining all the evidence, both for and against the finding, in a neutral light, and determining whether 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 v. State, 2000 WL 140257, *8 (Tex. Crim. App. 2000). This Court must defer to the jury's findings and may not substantially intrude upon the jury's role as the sole judge of the weight and credibility of the witnesses. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997); Huett v. State, 970 S.W.2d 119, 123 (Tex. App.-Dallas 1998, no pet.).

3. Applicable Law

Theft occurs when a person unlawfully appropriates another's property with the intent to deprive the owner. Tex. Penal Code Ann. § 31.03(a) (Vernon Supp. 2000). Appropriation is unlawful when the owner has not given effective consent. Tex. Penal Code Ann. § 31.03(b)(1) (Vernon Supp. 2000). Consent is not effective when it is induced by deception which occurs when a person creates or confirms by words or conduct a false impression of law or fact that will likely affect the other's judgment in a transaction, and which the person does not believe to be true. Tex. Penal Code Ann. § 31.01(1)(A), (3)(A) (Vernon Supp. 2000). Thefts may be aggregated when the amounts were obtained pursuant to one scheme or continuing course of conduct, and the conduct can be considered as one offense. Tex. Penal Code Ann. § 31.09 (Vernon Supp. 2000).

When a person deceptively secures execution of a document with the intent to defraud or harm another, causing the other person to sign or execute a...