Rovinsky v. State

• Decision Date: 10 September 1980
• Docket Number: No. 59546,No. 2,59546,2
• Citation: 605 S.W.2d 578
• Parties: Sol Shearn ROVINSKY, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 578

605 S.W.2d 578

Sol Shearn ROVINSKY, Appellant, v. The STATE of Texas, Appellee.

No. 59546.

Court of Criminal Appeals of Texas, Panel No. 2.

Sept. 10, 1980.

Rehearing Denied Oct. 15, 1980.

William M. Ravkind, George R. Milner, Ronald L. Goranson (on appeal only), Dallas, for appellant.

Henry Wade, Dist. Atty., W. T. Westmoreland, Jr., Douglas D. Mulder and Jon Sparling, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before DOUGLAS, ROBERTS and CLINTON, JJ.

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for theft. The court assessed punishment at five years. During the trial the jury was waived and the case was tried before the court.

Rovinsky was employed for seventeen years as an accountant and, later, as the treasurer and chief financial officer of the Zales Corporation. After he was discharged by Zales in February, 1976, he was indicted for embezzling some $600,000 from the corporation. He was acquitted of that charge on November 7, 1976. Two weeks later, he met in a hotel restaurant with Sam Bloom, president of Bloom Advertising, and a close friend of the chief executive officers of Zales. The entire meeting was recorded by investigators of the Dallas County District Attorney's office with the aid of a body microphone worn by Bloom.

Rovinsky told Bloom that he had three commodities that Zales would be interested in: (1) a libel suit against Zales by Rovinsky, (2) a shareholder's suit filed against the officers of Zales with Rovinsky as the shareholder's chief witness, and (3) an investigation of Zales by the Internal Revenue Service with Rovinsky again as the principal witness. He told Bloom that he wanted to meet with a personal representative of Zales to discuss his role in each of these areas. Bloom agreed to set up a meeting with Rovinsky and Ben Lipshy, the chairman of the board of Zales. Bloom's testimony was completely corroborated by the tape recordings of the meeting.

Rovinsky and Lipshy met on three separate occasions during November and December of 1976 in various hotel rooms. All three conversations were taped by employees of the district attorney's office with Lipshy's permission. During these meetings, Rovinsky discussed the possible role he could play in each of the three areas. He stated that he could either implicate all of the corporate officers of Zales in the IRS criminal investigation or could take sole responsibility for the tax fraud himself. He also stated that the other two areas could be similarly resolved. In return for this, he wanted Zales to settle his personal claim against Zales for the ultimately agreed upon sum of four million dollars. Lipshy agreed and, on the last meeting, delivered to Rovinsky a suitcase containing $200,000 in cash. Rovinsky was arrested upon leaving the hotel with the suitcase.

Appellant contends that he was deprived of his right to effectively cross-examine the State's chief witness, Ben Lipshy, when the court sustained the State's motion in limine. Prior to trial, the State filed a motion in limine to restrain appellant from cross-examining Lipshy in a number of areas, including the results of a consent decree between Zales and the Securities and Exchange Commission concerning allegations by Rovinsky of securities fraud, the merits of the shareholder's derivative suit, any indemnity agreements to Zales for improper conduct by its officers, any extra compensation to Zales' employees over and above the published salaries, any conspiracy among Zales' employees to file fraudulent tax returns, a European fund for the illegal purchase of diamonds and for avoiding taxes in Europe and Israel, any conspiracy among Zales' employees for illegal political contributions, the establishment of a Puerto Rican subsidiary to illegally avoid taxes, unlawful kick-back schemes with military officials and post exchanges, Internal Revenue Service investigations and a host of smaller subjects.

Rovinsky contended at trial that cross-examination in these areas was necessary to establish Lipshy's motive and bias for making his statements during the tape recorded conversations. Although he contends on appeal that he was denied the opportunity to cross-examine Lipshy as to Lipshy's motives and biases for testifying at trial, this ground does not comport with the objection in the court below and, thus, presents nothing for review. Crocker v. State, 573 S.W.2d 190 (Tex.Cr.App.1978); Watkins v. State, 572 S.W.2d 339 (Tex.Cr.App.1978). Further, although wide latitude should be given an accused to show any fact which would tend to establish ill feeling, bias, motive, or animus on the part of the witness testifying against the accused, see e. g., Coleman v. State, 545 S.W.2d 831 (Tex.Cr.App.1977); Jackson v. State, 482 S.W.2d 864 (Tex.Cr.App.1972), the trial court has considerable discretion as to how and when the bias may be proven and as to what collateral evidence may be used for that purpose. Carillo v. State, 591 S.W.2d 876 (Tex.Cr.App.1979), and cases cited therein. The probative value of the evidence sought to be introduced must be balanced against the prejudicial impact of the evidence, including undue prejudice, embarrassment, harassment to either a witness or a party, and the possibility of undue delay. Carillo v. State, supra. Because the evidence omitted in the present case goes only to Lipshy's motives for participating in the blackmail scheme of Rovinsky, i. e., to embarrass or discredit Rovinsky, it cannot be said that the trial court abused its discretion in refusing to allow the cross-examination of Lipshy in these areas.

Finally, any error that might have been committed in restricting the cross-examination was rendered harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). In Randle v. State, 565 S.W.2d 927 (Tex.Cr.App.1978), we held that the failure of the trial court to permit the sought-after cross-examination was not harmless error because the witness in question provided the only evidence of key elements of the offense. See also Castro v. State, 562 S.W.2d 252 (Tex.Cr.App.1978). In the present case, Lipshy's direct examination concerned only his version of the three conversations with Rovinsky. This testimony was corroborated in every detail by the admission of the tape recordings. Rovinsky testified and admitted that the statements in the recordings were made. No reversible error is shown.

Rovinsky also contends that the trial court erred when it excluded evidence supportive of his defensive theory. Rovinsky argues that Lipshy's sole motive in participating in the scheme and delivering the money was not to ward off an IRS investigation as alleged in the indictment but to cause Rovinsky's arrest and, thus, discredit him in the eyes of the IRS, the SEC and the stockholders. The evidence sought was, essentially, that outlined in the State's motion in limine above. We disagree with appellant's contention. It has long been the rule in this jurisdiction that an owner may aid in the detection of the commission of a theft by encouragement or participation in its execution so long as the owner does not induce the accused to commit the offense. Carnes v. State, 134 Tex.Cr.R. 9, 113 S.W.2d 542 (1938); Jarrott v. State, 108 Tex.Cr.R. 421, 1 S.W.2d 619 (1928); Price v. State, 55 Tex.Cr.R. 157, 115 S.W. 586 (1909). Thus, evidence of Lipshy's true motive to participate in Rovinsky's arrest was irrelevant. No error is shown.

Rovinsky argues that the trial court erred when it failed to grant his motion to quash because the indictment failed to allege that the threat was communicated to Lipshy. The indictment reads as follows:

"... Sol Shearn Rovinsky hereinafter styled Defendant, on or about the 16th day of December in the year of our Lord One Thousand Nine Hundred and seventy-six in the County and State aforesaid, did unlawfully, knowingly and intentionally appropriate property, namely, current money of the United States of a value of over $10,000.00, from Ben Lipshy, the owner thereof, with intent to deprive the said owner of the said property and without the effective consent of said owner by threatening to accuse the said owner of a criminal offense, namely, a violation of the Internal Revenue Code of the United States."

V.T.C.A., Penal Code, Section 31.03, reads in pertinent part:

"(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.

"(b) Appropriation of property is unlawful if:

"(1) it is without the owner's effective consent; ..."

V.T.C.A., Penal Code, Section 31.01(4), defines "effective consent" as follows:

"(4) 'Effective consent' includes consent by a person legally authorized to act for the owner. Consent is not effective if:

"(A) induced by deception or coercion; ..."

V.T.C.A., Penal Code, Section 31.01(1), defines "coercion" in part as follows:

"(1) 'Coercion' means a threat, however communicated:

"* * *

"(C) to accuse a person of any offense; ..."

We hold that the indictment sufficiently alleges the fact of the communication of a threat to Lipshy. Article 21.17, V.A.C.C.P., states that statutory language "need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning or which include the sense of the statutory words." In Chance v. State, 563 S.W.2d 812 (Tex.Cr.App.1978), this Court held that Article 21.17 applied to all statutory language except where the language is a constituent element of the offense and has acquired a technical meaning by virtue of its express definition in the Penal Code. 563 S.W.2d at 815. The fact of communication of the threat is neither an essential element of the offense of theft, see Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1975), nor is it defined in the Penal Code. Thus, by relying on the commonly accepted meaning of the word "threatening", we hold that the indictment...