Rodriguez v. State

Decision Date27 September 2001
Docket NumberNo. 08-97-00268-CR.,08-97-00268-CR.
Citation90 S.W.3d 340
PartiesAlberto RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

Matthew DeKoatz, El Paso, for appellant.

Jaime E. Esparza, Tom A. Darnold, El Paso, for state.

Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.

OPINION

BARAJAS, Chief Justice.

This is an appeal from jury convictions for two (2) counts of engaging in organized criminal activity. The jury assessed punishment at twenty (20) years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice on each count. We affirm the judgment of conviction.

I. SUMMARY OF THE EVIDENCE

Appellant was originally indicted on four counts of engaging in organized criminal activity. This original indictment was dismissed and Appellant was re-indicted for three counts of engaging in organized criminal activity. Counts I and II alleged that Appellant engaged in bribery as the underlying offense. Count III alleged the underlying offense of aggregated theft. Prior to trial, the State dismissed Count II. The jury found Appellant guilty on Counts I and III and assessed punishment at twenty (20) years' imprisonment. At trial, the State utilized the testimony of James Carroll Sikes. He testified that he was the bookkeeper for a business called Lamco which supplied heating and air-conditioning parts. Appellant was the sole proprietor of the business. Sikes testified regarding Lamco's financial records for 1994 and the first part of 1995. These records included Lamco's general ledgers, transaction lists, and vendor lists. Sikes testified that whenever Lamco issued a check, the check would be assigned to a particular account; in the case of checks issued to Lamco's suppliers or vendors, the checks were assigned to the cost of goods sold which was an inventory account. Appellant would inform Sikes if he was to assign them as purchases for inventory.

One vendor on Lamco's list was assigned the term "cash." Sikes testified that when Appellant wrote a check to cash, Appellant would inform him that he took the cash to purchase inventory in Mexico for resale to the El Paso Independent School District (EPISD) — Lamco's major account. Appellant told Sikes to credit such checks to Lamco's inventory account. Appellant never provided Sikes with any receipts or invoices from such alleged purchases.

With regard to Lamco's purchases of inventory from Mexico, David Scott McGurk, an import specialist for the United States Custom Service, testified that when people or businesses import commercial goods from Mexico, they are required to fill out the appropriate paperwork and declare the goods being imported. McGurk stated that he ran a computer search of the records of the United States Custom Service; he was unable to find any indication that Lamco or Appellant had imported any goods from Mexico.

Detective Gerald Palmer testified that he worked for the white collar unit of the El Paso Police Department. He stated that he examined Lamco's records and compared Lamco's purchases of inventory against what Lamco had purportedly delivered to EPISD. Utilizing this comparison, Detective Palmer determined that Lamco could not have delivered to EPISD all of the items EPISD had purchased and paid for because Lamco had never purchased those items from any of its suppliers. A summary of the transactions that Detective Palmer determined to be fraudulent, based on this comparison, was admitted into evidence. Detective Palmer then detailed each of the co-defendants' participation in the kickback scheme, and exhibits showing the amounts attributable to each of the co-defendants were admitted into evidence. According to Detective Palmer, the total amount of fraudulent transactions was approximately $183,000.

During his cross-examination, Detective Palmer stated that his conclusions regarding Lamco's purchases from its suppliers were based on the checks written by Lamco, and that he did not believe that the checks written to "cash," allegedly used to purchase inventory in Mexico, were actually used for that purpose. This conclusion was based on the lack of any receipts or other documentation of any such purchases from Mexico, as well as the lack of any records from U.S. Customs showing that Lamco had imported any goods from Mexico.

When Detective Palmer learned of the possible criminal activity in this case, he conducted a two-week surveillance of Lamco. During this surveillance, Detective Palmer noted numerous EPISD employees going into Lamco's building. The employees would go into Lamco's building and they would stay anywhere from 15 minutes to two hours. They left without carrying any parts or supplies.

John W. Whitaker, the Associate Superintendent for Operations at EPISD, testified that he oversaw the maintenance department of EPISD, including the unit that repaired the heating, ventilation, and air-conditioning equipment ("HVAC"). Whitaker testified that in the HVAC unit, there were two-man teams, and these teams consisted of a lead man and a helper. If a problem arose regarding a heating or cooling unit, it was reported to the HVAC division. Then one of these two-man teams was assigned to investigate and correct the problem. If the situation required the purchase of a part to replace a defective part, the team was authorized to go to an approved vendor to purchase the part. An invoice would be signed for the replacement part. Whitaker explained that during the time covering the investigation, EPISD had no procedure to check and guarantee that the parts purchased were actually delivered to EPISD. Whitaker testified that EPISD had to assume that the employees did in fact take delivery of the parts they signed for and that were eventually paid for by EPISD.

At the time of Appellant's trial, two EPISD maintenance employees had entered plea agreements with the State due to their involvement with Appellant in the scheme to defraud EPISD and had agreed to testify for the State. Oscar Esparza testified that while he worked in the maintenance department of EPISD, he held the position of helper and worked with a lead man. Esparza testified that when his team would go to Lamco, they would often sign invoices without actually getting the parts that were listed on the invoice. Esparza stated that he knew it was wrong to sign for the fraudulent invoices. He testified that on one occasion, Appellant handed $50 to his lead man, Manny Barrera, who then handed the $50 to Esparza.

Ruben Prieto testified that he worked in the HVAC division of EPISD maintenance as a helper and a lead man. Prieto explained how he became involved in the kickback scheme, characterizing the payments made to him by Appellant as "loans" that were to be paid back to Appellant by EPISD. For all of the fraudulent invoices signed by Prieto, he and Appellant would split the proceeds "50/50." Specifically, Prieto would call Appellant and tell him that he was going to come in, and Appellant would have Prieto's share of the money ready for him.

Dr. Stan Paz, the Superintendent of Schools for EPISD, testified concerning the procedures that were followed before an EPISD check was issued to a vendor in payment for parts purchased from the vendor. Dr. Paz stated that when his signature was affixed to the checks, he assumed that EPISD had actually received the parts that the checks supposedly paid for, and if he had known that the parts were not actually received by his employees, he would not have signed the checks.

II. DISCUSSION

In Issue No. Five, Appellant contends that the evidence was legally insufficient to sustain the conviction. In reviewing the legal sufficiency of the evidence, we are constrained to view the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could find the essential elements of the offense, as alleged in the application paragraph of the charge to the jury, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App.1991); Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim.App.1989); Humason v. State, 728 S.W.2d 363, 366 (Tex.Crim.App.1987). More particularly, sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 239-40 (Tex.Crim.App.1997).

Our role is not to ascertain whether the evidence establishes guilt beyond a reasonable doubt. Stoker v. State, 788 S.W.2d 1, 6 (Tex.Crim.App.1989), cert. denied, 498 U.S. 951, 111 S.Ct. 371, 112 L.Ed.2d 333 (1990); Dwyer v. State, 836 S.W.2d 700, 702 (Tex.App. — El Paso 1992, pet. ref'd). We do not resolve any conflict in fact, weigh any evidence or evaluate the credibility of any witnesses, and thus, the fact-finding results of a criminal jury trial are given great deference. Menchaca v. State, 901 S.W.2d 640, 650-52 (Tex.App. — El Paso 1995, pet. ref'd); Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App.1991); Leyva v. State, 840 S.W.2d 757, 759 (Tex.App. — El Paso 1992, pet. ref'd); Bennett v. State, 831 S.W.2d 20, 22 (Tex.App. — El Paso 1992, no pet.). Instead, our only duty is to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. Adelman, 828 S.W.2d at 421-22. In so doing, we resolve any inconsistencies in the evidence in favor of the verdict. Matson, 819...

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