Thomas v. State

• Decision Date: 17 May 2007
• Docket Number: No. 13-04-573-CV.,13-04-573-CV.
• Citation: 226 S.W.3d 697
• Parties: Ruth C. THOMAS and John W. Thomas d/b/a Tramites Migratorios, Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

226 S.W.3d 697

Ruth C. THOMAS and John W. Thomas d/b/a Tramites Migratorios, Appellants, v. The STATE of Texas, Appellee.

No. 13-04-573-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

May 17, 2007.

Mark Heidenheimer, McKinney, for appellants.

Ricardo Madrigal, Amberly D. Dattilo, McAllen, for appellee.

Before Justices HINOJOSA,¹ YAÑEZ, and RODRIGUEZ.

OPINION

Opinion by Justice YAÑEZ.

Appellee, the State of Texas, acting through the Consumer Protection Division of the Attorney General's Office, sued appellants, Ruth C. Thomas and John W. Thomas, d/b/a Tramites Migratorios, for violations of the Notary Public Act ("NPA")² and the Deceptive Trade Practices Act ("DTPA").³ Specifically, the State alleged that by offering immigration services through their business (Tramites Migratorios) to persons who purchased their services, appellants engaged in the unauthorized practice of law. Following a jury trial, the jury (1) found each appellant had acquired $469,416.50 by means of engaging in an unlawful act or practice; (2) assessed penalties in the amount of $20,000.00 as to each appellant, and (3) awarded attorneys' fees to the State in the amount of $22,000.00 as to each appellant. The trial court rendered judgment in the State's favor, ordered permanent injunctive relief as to each appellant, and ordered restitution, penalties, and attorneys' fees as awarded by the jury. By four issues, appellants contend (1) the trial court erred in admitting evidence of prior misconduct by Ms. Thomas, (2) there is no evidence to support the jury's findings that each appellant acquired $469,416.50 by unlawful means, (3) the trial court erred in ordering restitution without specifically identifying the persons to whom monies were to be paid or the amount due to each recipient, and (4) the court erred in ordering restitution in an amount that includes monies paid earlier than two years prior to the filing of the filing of the State's suit. We affirm.

Standard of Review and Applicable Law

We address legal-sufficiency challenges as either "no-evidence" or "matter-of-law" issues.⁴ We analyze the issue as a "no-evidence" challenge when, as here, the party complaining on appeal did not bear the burden of proof at trial.⁵

In deciding a no-evidence challenge, we determine whether there is evidence that would enable reasonable and fair-minded people to reach the verdict under review.⁶ In doing so, we view all the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.⁷ We will sustain a legal sufficiency point if the record reveals the following: (a) the complete absence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence establishes conclusively the opposite of the vital fact.⁸ The fact finder is the sole judge of the credibility of the witnesses and the weight to give their testimony.⁹

The admission and exclusion of evidence is committed to the trial court's sound discretion.¹⁰ We must uphold the trial court's evidentiary ruling if there is any legitimate basis for the ruling.¹¹ We will not reverse a trial court for an erroneous evidentiary ruling unless the error probably caused the rendition of an improper judgment.¹² When erroneously admitted evidence is merely cumulative or does not concern a material issue dispositive of the case, the error is harmless.¹³ We review the entire record, and require the complaining party to demonstrate that the judgment turns on the particular evidence admitted.¹⁴ Whether erroneous admission is harmful is more a matter of judgment than precise measurement.¹⁵ In making that judgment, a reviewing court may consider the efforts made by counsel to emphasize the erroneous evidence and whether there was contrary evidence that the improperly admitted evidence was calculated to overcome.¹⁶ A trial court abuses its discretion when it acts without regard for any guiding rules or principles.¹⁷

Texas Rule of Evidence 404(b) provides, in pertinent part:

"Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . ."¹⁸

"Other acts" evidence is thus admissible to show a plan or scheme.¹⁹ If extraneous offense evidence is improperly admitted during the State's case-in-chief, any error may be cured by the defendant's subsequent testimony which "opens the door" to rebuttal.²⁰

Analysis

By their first issue, appellants contend the trial court erred in admitting evidence of prior misconduct by Ms. Thomas. Specifically, appellants complain of the trial court's admission of Exhibit 14, a letter dated October 14, 1993, from the Executive Director of Shiloh Center for Human Development, Inc. to Ms. Thomas.²¹ Ms. Thomas testified that she worked at the Shiloh Center, "an assistance center for immigrants" located in Ohio, for several years in the early 1990's, until 1993. The October 14 letter advises Ms. Thomas that she is responsible for "illegal and unauthorized" expenditures, "which constitute theft of client funds." The letter seeks restitution of "funds owed to clients and Shiloh Center" in the amount of $8,864.75. Appellants' counsel objected to the admission of the letter on hearsay grounds; the State argued it was admissible as "evidence of other wrongs to show scheme." The court admitted the letter.

Appellants argue that the trial court erred in admitting the letter because it did not establish acts Ms. Thomas took in preparation for the charged offense, but instead, merely showed that she had engaged in prior acts similar to the charged offense. Thus, appellants argue, the letter was "pure propensity evidence" prohibited by rule 404(b).

The State argues that the trial court acted within its discretion in admitting the letter to show that Ms. Thomas had a plan and motive to open her own immigration consulting business where she would continue to profit from immigrants without supervision. The State also argues that appellants "opened the door" to the October 14 letter by eliciting testimony from Ms. Thomas on direct examination that she obtained her experience in filling out immigration forms from her employment at the Shiloh Center. The State further argues that even if the trial court abused its discretion in admitting the letter, appellants have not shown that the error, if any, caused the rendition of an improper judgment because there is an abundance of undisputed evidence to independently support the jury's findings as to the violations of the NPA and the DTPA.

During the defense case-in-chief, defense counsel asked Ms. Thomas, "[d]id you run a scam, Ms. Thomas?" and "[d]id you try to rip people off?" Ms. Thomas replied "no," that she wanted to have a good business, and that "this is what hurts [her] from these accusations."

We agree with the State that assuming, without deciding, that the October 14 letter was inadmissible "propensity evidence" under rule 404(b), appellants have not shown that the judgment turned on admission of the letter.²² As discussed below, Ms. Thomas testified, with regard to the charged offenses, that she (1) interviewed clients to determine if they were eligible for immigration benefits, (2) advised clients as to whether to file an application for benefits, (3) decided which immigration category a client should apply under and filled out the applicable forms, (4) charged clients a fee each time documents were drafted, (5) was a notary at the time she accepted money from clients for providing immigration services, (6) notarized Mr. Thomas's signature on documents even though she was not present when he signed the documents, and (7) notarized her own signature. In addition, Claudia Beltran testified that she paid Ms. Thomas $850.00 in cash in exchange for immigration services, including the filing of an application for permanent residency. Marco Cubas testified that he paid Ms. Thomas approximately $1,800.00 in exchange for her services in preparing an application for residency. Mr. Cubas testified that Ms. Thomas represented to him that she was an immigration attorney. He also testified that Ms. Thomas advised him to ignore several notices regarding his failure to appear at an immigration hearing in Houston and that he should ignore the deportation notice he had received.

During closing argument, the State briefly referred to the October 14 letter twice:

[Prosecutor]: Ms. Thomas came across with the scheme, this plan, this blueprint of how to make a lot of money at Shiloh Community Center with immigrants. And she found out that they were the perfect victims. . . . They are the perfect victims. And she discovered that at Shiloh because she made money from the immigrants that they were requiring for her to pay it back. Look at the exhibit. They held her accountable. They wanted her to pay it back.

. . . .

[The evidence] is overwhelming. Make [the defendants] accountable. Shiloh made them accountable. And this is the process, ladies and gentlemen, how we bring people here to court, to hold them accountable for their behavior.

We conclude that the State presented abundant evidence and testimony (including the defendants' testimony) regarding the charged offense. After reviewing the entire record, we conclude that appellants have not shown that the judgment turned on the admission of the October 14 letter.²³ We conclude the trial court did not abuse its discretion in admitting the letter. Appellants' first issue is overruled.

By their second issue, appellants contend there is "no evidence" to...