Nees v. Culbertson

• Decision Date: 24 March 1969
• Docket Number: No. 24400.,24400.
• Citation: 406 F.2d 621
• Parties: Robert P. NEES, Appellant, v. R. E. CULBERTSON, Sheriff, Jefferson County, Texas, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

406 F.2d 621 (1969)

Robert P. NEES, Appellant, v. R. E. CULBERTSON, Sheriff, Jefferson County, Texas, Appellee.

No. 24400.

United States Court of Appeals Fifth Circuit.

January 28, 1969.

Rehearing and Rehearing Denied March 24, 1969.

Phillip Bordages, M. Herbert Oldham, and A. W. Dycus, Beaumont, Tex., for appellant.

Lonny F. Zwiener, Robert E. Owen, Jim Vollars, Asst. Attys. Gen., Austin, Tex., Crawford C. Martin, Atty. Gen. of Texas, George M. Cowden, First Asst. Atty. Gen., A. J. Carubbi, Jr., Staff Legal Asst. Atty. Gen., R. L. Lattimore, Howard M. Fender, Asst. Attys. Gen., Austin, Tex., for appellee.

Before JOHN R. BROWN, Chief Judge, and WISDOM and GOLDBERG, Circuit Judges.

Rehearing and Rehearing En Banc Denied March 24, 1969.

GOLDBERG, Circuit Judge:

The appellant, Robert P. Nees, was indicted and convicted for fraudulent misapplication of public funds in violation of Article 95, Vernon's Annotated Penal Code.¹ Specifically, the indictment charged that Nees on or about July 31, 1959, did fraudulently take and convert to his own use $312.35 belonging to Jefferson County, Texas, which had come into his possession while acting as deputy sheriff of that county. He was tried on a plea of not guilty, was found guilty of the offense charged in the indictment, and was sentenced to four years imprisonment. His conviction was affirmed by the Texas Court of Criminal Appeals. Nees v. State, Tex.Cr.App. 1966, 402 S.W.2d 186.

Nees petitioned the Federal District Court for writ of habeas corpus claiming two errors, namely, (1) that the charging allegations of the indictment varied from the proven facts and thus failed to give him notice of the accusations against him, and (2) that he was denied the assistance of counsel at the time he made an inculpatory statement to an investigator, which statement was admitted into evidence. Nees' petition was denied by the District Court, Nees v. Culbertson, E.D.Tex.1966, 260 F.Supp. 791, from which judgment he now appeals. We affirm the denial of the writ.

The status and duties of Nees at the time in question were never in dispute. He was the duly appointed deputy sheriff of Jefferson County whose functions were to receive and to account for all funds paid to the sheriff's office for fines, judgments, tax sales, and other matters. His accounting procedures included the issuance of receipts for deposits and disbursements and the compiling of a monthly report.

The prosecution advanced and the court admitted the following evidence to prove that Nees had misused his position as deputy sheriff: (1) check stubs, cash receipts, bank deposits, cancelled checks, and monthly reports from the financial records of the Sheriff of Jefferson County, Texas, covering the months of November, 1958, to November, 1961; (2) the testimony of a fellow employee to the effect that Nees had admitted taking funds in the amount of $15,000.00; (3) the county auditor's report, and (4) a confession of guilt obtained from Nees.

I.

We first focus our inquiry on the nexus of the indictment, evidence, and jury charge. Although the indictment charged only a specific crime, i. e., the unlawful taking and conversion of $312.35, evidence was introduced over Nees' objections concerning defalcations of fifteen to twenty thousand dollars over a three-year period. The crux of Nees' argument, both at the trial and on this appeal, is that this divergence between the words of the indictment and the evidence presented at trial constituted undue surprise, contrary to the due process clause of the fourteenth amendment.

Nees acknowledges that his conviction was obtained in compliance with traditional Texas criminal practice. Indeed, the indictment was drawn precisely in accordance with Article 21.02 of the Vernon's Ann.Texas Code of Criminal Procedure (formerly Article 396) which reads in relevant part:

"An indictment shall be deemed sufficient if it has the following requisites:

* * * * * *

6. The time mentioned must be some date anterior to the presentment of the indictment, and not so remote that the prosecution of the offense is barred by limitation.

7. The offense must be set forth in plain and intelligible words.

* * *"

Moreover, Texas courts have sanctioned the introduction of germane evidence despite certain variances from the charge as to the time and nature of crime — even when that extra evidence itself leads to the conviction. In Mayse v. State, 1951, 156 Tex.Cr.R. 360, 242 S.W.2d 371, a case directly in point, the defendant was accused of embezzling funds belonging to the city which had come into his possession by virtue of his office as city secretary. The Texas Court of Criminal Appeals held that a conviction could be sustained regardless of whether the state proved embezzlement of the exact sum specified in the indictment. The following statement by the Court is applicable here:

"The indictment charged the embezzlement by the appellant of $5,154.03.

The state was not, however, under the burden of establishing that such sum was embezzled. To the contrary, the conviction was authorized by a showing of the conversion of any sum of money." 242 S.W.2d at 372.

See also Ellis v. State, 1958, 167 Tex.Cr. R. 87, 88, 318 S.W.2d 655, where the same court reversed a defendant's conviction for misappropriation of public funds because he had been acquitted two years earlier on the same indictment. The court applied the following doctrine in denying the State's claim that it was relying on different transactions in the two cases:

"The general rule is that the state is not bound by the allegation of `on or about\' in an indictment as to the date of the commission of the offense, but may rely upon any date within the period of limitation. 23 Tex.Jur. 648, Sec. 41; Vidaurri v. State, 155 Tex. Cr.R. 17, 230 S.W.2d 536; Lozano v. State, 159 Tex.Cr.R. 613, 266 S.W.2d 147." 318 S.W.2d at 656.

Numerous other reaffirmations of this general rule include Grantom v. State, Tex.Cr.App.1967, 415 S.W.2d 664, 665; Ex Parte Martin, Tex.Cr.App.1964, 374 S.W.2d 436, 438; Rogers v. State, 1960, 169 Tex.Cr.R. 239, 333 S.W.2d 383, 384.

Nees acknowledges the above authority and does not contend that he was treated in any unique manner under the present Texas law. Indeed, he seeks to overturn that law whose nebulous tolerances he claims deny him the basic right to know the specific boundaries of the State's charge.

The State's reply is two-fold. First, it contends that the evidence was not extraneous, but rather was essential to demonstrate the methodical fraud perpetrated by Nees. The State points out that the crime of embezzlement springs from a position of trust, and rarely, if ever, will the actor resort to open misappropriation. The nature of the crime, then, requires balance-sheet computations, not only to establish the misappropriation of a specific sum of money, but also to present to a jury outward manifestations of the accused's inner conscience.

The first contention categorizes the problem as one of evidence and not one of indictment sufficiency. It finds basis in the fact that the State did prove the conversion of a $312.35 check, and the jury did convict Nees of the misappropriation of some or all of the $312.35. The jury's verdict was rendered in accordance with one of the trial court's instructions which read as follows:

"You are instructed that before you can convict the Defendant in this case you must find and believe from the evidence, beyond a reasonable doubt, that on or about the date alleged in the indictment the Defendant did in Jefferson County, Texas, fraudulently take, misapply and convert to his own use all or some part of said $312.35 in money alleged in the indictment as you are hereinabove instructed with respect to said amount and that said money so taken, misapplied and converted, if it was, belonged to Jefferson County, Texas, and had therefore come into and was in the custody and possession of the Defendant by virtue of his office as deputy sheriff of Jefferson County, Texas, and if you have a reasonable doubt as to any of these matters you will find the Defendant not guilty." (Emphasis added.)

The verdict itself stated:

"We, the jury, find the defendant guilty of fraudulent misapplication of county funds as charged in the indictment, and assess his punishment at confinement in the penitentiary for a term of Four (4) years." (Emphasis added.)

Viewed from the above facts, Nees' complaint becomes one merely of over-proof rather than one of undercharging. Nees' burden of showing injustice is thus increased, because state evidentiary procedures are generally not subjected to microscopic examination by the federal courts. In Lisenba v. California, 1941, 314 U.S. 219, 228-229, 62 S.Ct. 280, 286, 86 L.Ed. 166, 176, the Supreme Court refused to review the admissibility of what the defendant had claimed to be irrelevant and unduly shocking evidence. The Court stated as its underlying rationale: "We do not sit to review state court action on questions of the propriety of the trial judge's action in the admission of evidence." This proposition was recently reaffirmed in Burgett v. Texas, 1967, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319. Even though the Court in that case rejected the evidentiary admissibility of a prior conviction obtained when the defendant had been denied the assistance of counsel, it was careful to state:

"We do not sit as a court of criminal appeals to review state cases. The States are free to provide such procedures as they choose, including rules of evidence, provided that none of them infringes a guarantee in the Federal Constitution." 88 S.Ct. at 261, 19 L.Ed.2d at 324.

Our Court, through its general supervisory power over federal courts rather than through its constitutional supervision of state courts, has had occasion to comment on an evidentiary issue similar to the one at bar. In Weiss v. United States, 5 Cir. 1941, 120 F.2d 472, 474-475, we affirmed a conviction for...