Pye v. State, No. 03-06-00306-CR (Tex. App. 2/27/2009)
| Decision Date | 27 February 2009 |
| Docket Number | No. 03-06-00306-CR.,03-06-00306-CR. |
| Parties | DOUGLAS KELLY PYE, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the District Court of Williamson County, 26th Judicial District, No. 05-547-K26, Honorable Billy Ray Stubblefield, Judge Presiding.
Affirmed.
Before Chief Justice JONES, Justices HENSON and ONION*.
Appellant Douglas Kelly Pye appeals his state jail felony conviction for forgery. See Tex. Penal Code Ann. § 22.21 (West Supp. 2008). The jury found appellant guilty and the trial court assessed punishment at one year's imprisonment.
Appellant advances five points of error, four of which allege the trial court erred in overruling his motion for new trial. First, appellant asserts the trial court erred in failing to grant a new trial on the basis of ineffective assistance of counsel because counsel did not "view" the presentence report forty-eight hours before the hearing concerning the presentence report. Alternatively, appellant claims counsel failed to object to the presentence report, failed to prepare appellant to respond in court to the presentence report, and interrupted appellant during his response at the hearing.
Second, appellant urges error in the overruling of the new trial motion because counsel was ineffective when he gave erroneous legal advice that appellant had a meritorious "defense" of a lack of intent to defraud or harm the complainant. It is claimed that this led appellant to make statements in the presentence interview and later in court that were characterized as a "minimization of guilt," resulting in the rejection of a plea bargain agreement.
Third, error is again urged in the overruling of the new trial motion because appellant was deprived of counsel at a critical stage of the proceedings resulting from the district attorney's disclosure to appellant's counsel of the disparaging remarks made about counsel by appellant in recorded jail telephone conversations.
Fourth, appellant argues that a new trial should have been granted because the trial court abused its discretion at the new trial hearing by admitting into evidence "eleventh hour" affidavits offered by the State on the last day before the motion for new trial was overruled by operation of law.
Fifth and last, appellant contends that the trial court erred in failing to follow a plea bargain agreement for deferred adjudication because (1) appellant did not minimize his guilt in the presentence report, or (2) the trial court had accepted the guilt plea and plea bargain agreement prior to requesting a presentence report. We will affirm the judgment of conviction.
Appellant does not challenge the legal or factual sufficiency of the evidence to sustain the conviction. A recitation of the facts and the procedure utilized will place the points of error in proper perspective. In January 2005, appellant Pye and Dustin Almazan were both employees at the Mac Haik Ford automobile dealership in Georgetown. Appellant had assisted Almazan, his "cousin-in-law," in obtaining employment there about a year earlier. Sometime in January 2005, Almazan's employment was terminated, apparently for failing to meet his sales quota. The Haik dealership "cut" Almazan's termination check in the amount of $59.80 and placed the check in a drawer in the "sales tower" of the dealership for Almazan. The record reflects that appellant obtained the Almazan check, forged Almazan's name, and cashed the check at a food mart. This was done without the knowledge, consent, or permission of Almazan. When Almazan inquired about the check, the dealership learned that the check had been cashed. Another check was issued to Almazan by the dealership, and the agency's bank took the loss after Almazan filed a forgery affidavit. When Almazan was at the Georgetown police station, he received a telephone call from appellant. Almazan returned the call on a police telephone and the conversation was recorded. In the conversation, appellant admitted to having cashed the check without permission by signing Almazan's name.
John Tirella, inventory manager of the Haik dealership, investigated the missing check. Tirella talked to appellant, who, in an admission against interest, stated to Tirella that he (appellant) had taken the check and cashed it. Detective Ronald Price testified as to the filing of charges against appellant on February 16, 2005, and the recorded telephone conversation between Almazan and appellant.
Throughout the record, there was testimony about a "spin" check issued by the Ford Motor Company to a salesman who had sold a certain type of vehicle as an additional commission. The "spin" checks in these cases were always issued only in the name of the first salesman on the list because the federal income tax form 1099 was sent to that individual. If two or more salesmen were involved in a sale, they could agree how to split the "spin" check made out to the first name on the list. If a dispute arose, the Haik dealership encouraged a settlement but did not enforce agreements. It appears that in January 2005, Almazan received an $82.50 "spin" check for the sale of a Lincoln Navigator. Defense exhibit No. 2, a Haik dealership document, was introduced at trial. It reflected that the salesmen listed on the sale of the Lincoln Navigator were "Almazan, Dustin" and "Pye, Douglas," in that order.
John Tirella testified that when he questioned appellant about the matter, appellant simply stated that he had made "a mistake and messed up." Appellant made no claim to Tirella that Almazan intended to share the "spin" check of $82.50 with him (appellant). Tirella further testified that he did not know of any agreement between Almazan and appellant about the sale of the Lincoln automobile.
Dustin Almazan testified that he repeatedly called the Haik dealership about his termination check of $59.80 and was finally told that it had been cashed. Almazan filed a forgery affidavit and went to the Georgetown police department. In two or three earlier telephone conversations with appellant, no mention was made to Almazan that appellant had any knowledge of the cashed check. According to Almazan, it was not until the telephone conversation recorded by the police that he learned appellant had taken the check and cashed it.
Almazan revealed that appellant came to the site of Almazan's new job in Temple and put $60.00 in cash on the desk. Almazan refused to accept the money. Almazan placed the money in a desk drawer and left that employment two days later. As far as he knew, the money was still in the drawer. Almazan testified that appellant was trying to get him to drop the case. Almazan related that he had earlier received the "spin" check for the sale of a Lincoln automobile, which was issued solely to him, although appellant was also listed as a salesman on the dealership records. He admitted having an ongoing dispute with appellant about sharing the "spin" check, but had finally decided not to share. He had not shared any other "spin" checks that he had received.
Appellant did not testify at the guilt/innocence stage of the trial before the jury, but did testify at the penalty stage of the trial before the trial court.
On May 31, 2005, appellant was indicted on two counts of forgery. On February 6, 2006, appellant, represented by retained counsel, waived trial by jury and entered a plea of guilty before the trial court to the first count of the indictment charging a state jail felony. The State offered a "one day only" plea bargain offer, to which appellant and his counsel agreed. The plea bargain agreement called for a punishment of four years of deferred adjudication supervision (probation), a $2,500 fine, and thirty days in jail with jail credit for time in confinement. Appellant was duly admonished of the consequences of his guilty plea and the trial court was made aware of the plea bargain. Appellant made a judicial confession after which the trial court examined appellant as to the plea bargain. The record then reflects:
The Court: Mr. Pye. I accept your plea. I find the evidence substantiates your guilt, but I do not find you guilty at this time.
The cause was recessed to await the preparation of the presentence report and to then determine whether the plea bargain agreement was to be accepted.
The case was recalled on March 23, 2006. In a somewhat informal manner, the trial court established appellant's identity and what had earlier transpired in the case; then, skipping over appellant's prior criminal record, the trial court directed questions personally to appellant raising an issue as to whether appellant was denying his guilt. Appellant acknowledged the truth of the statements in the presentence report that he had a "stupid, crazy idea" to cash the check so it could be easily divided, with the intent to give Almazan an opportunity to pay appellant the forty dollars owed him from the sharing of the "spin" check. Appellant agreed that he had also told the probation interviewer that he had no intent to defraud or harm anyone. Appellant's counsel tried to modify appellant's statements and his admission that he was only guilty of a part of the allegations in the indictment. The prosecutor then raised questions about proceeding with the plea bargain. The trial court rejected the plea agreement of deferred adjudication and ordered the case set for a jury trial. There were no objections to the trial court's actions.
The jury trial on appellant's plea of not guilty commenced on May 1, 2006, this time on the second count of the indictment. The first count was waived and abandoned by the State. After the jury found appellant guilty, the trial court conducted a penalty hearing. Appellant testified that he was disappointed in the jury's verdict, but his intent...
To continue reading
Request your trial