Tottenham v. State

• Decision Date: 29 January 2009
• Docket Number: No. 01-07-00389-CR.,No. 01-07-00390-CR.,01-07-00389-CR.,01-07-00390-CR.
• Citation: 285 S.W.3d 19
• Parties: Earl TOTTENHAM, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

285 S.W.3d 19

Earl TOTTENHAM, Appellant, v. The STATE of Texas, Appellee.

No. 01-07-00389-CR.

No. 01-07-00390-CR.

Court of Appeals of Texas, Houston (1st Dist.).

January 29, 2009.

Discretionary Review Refused July 1, 2009.

Keisha L. Smith, Houston, TX, for Appellant.

B. Warren Goodson Jr., Asst. Crim. Dist. Atty., Kurt Sistrunk, Crim. Dist. Atty., Galveston County, Galveston, TX, for Appellee.

Panel consists of Justices TAFT, BLAND, and SHARP.

OPINION

TIM TAFT, Justice.

Appellant, Earl Tottenham, was charged with three offenses of tampering with a governmental record¹ in trial court cause numbers 06CR1462, 06CR1463, and 06CR1464. After a jury trial on all three causes, appellant was convicted of the charges in cause numbers 06CR1463 and 06CR1464.² The jury assessed punishment at four years in prison for each cause, but recommended that the sentences be suspended; the trial court did so and placed appellant on community supervision for four years in each cause. Appellant appeals his convictions in cause numbers 06CR1463 and 06CR1464.³ We determine whether: (1) the evidence was legally and factually sufficient to support the convictions; (2) the trial court erred in not giving a particular jury instruction and, if so, whether such error resulted in egregious harm; (3) the sentence imposed was void; and (4) whether the assistance of trial counsel was rendered ineffective by counsel's failure to object to the court's charge. We affirm appellant's convictions and sentences in both causes.

Facts

Appellant was elected constable for Precinct 3 of Galveston County in November 1992 and was reelected three times—the last time being in November 2004. As a law enforcement officer, appellant was required to be a commissioned peace officer. Appellant failed to maintain the training required by the Texas Commission of Law Enforcement Education and Standards (T.C.L.E.O.S.E.) and, consequently, his license as a peace officer expired on August 31, 2001. In May 2002, T.C.L.E.O.S.E. sent appellant a notice that his license had expired and that T.C.L.E.O.S.E. considered appellant to be terminated from the Precinct 3 Constable's office. In October 2004, an audit of the Galveston County Precinct 3 Constable's office was conducted and it was discovered that appellant's peace officer's license had expired in August 2001. The investigator contacted appellant by phone on October 26, 2004, and told him of this finding. Appellant told the investigator that he had completed all his required training by attending classes at the Galveston County Sheriff's Training Academy and would take the test to reinstate his license. Neither the Galveston County Judge nor Galveston County's legal department was then aware of the lapse of appellant's peace officer's license.

A second audit was conducted in May 2005⁴ by the same investigator and among the items mentioned in the report following the audit was that the violations found in the 2004 audit still existed. The 2005 audit report specifically mentioned appellant's expired peace officer's license and the "extraordinary liability issues [that presented] for the officers" that had been mentioned in the prior audit. The investigator noted appellant's prior statements that he would be getting his endorsement and retaking the test, which implied that appellant had completed the mandatory training required. After reviewing records in Austin, the investigator determined that appellant had not completed the training courses required before an endorsement could issue and had taken no action except to request an application to retest. The investigator specifically noted that appellant needed to complete "Identity Theft, Special Investigative Topics, Asset Forfeiture, and Racial Profiling" courses and complete a minimum of 80 training hours between September 1, 2001 and August 31, 2005.

In June 2005, the director of the Credentialing and Enforcement Division of T.C.L.E.O.S.E. sent a letter to appellant, providing him a copy of the 2005 audit report, warning him that it was important that he take corrective action without delay, and requesting that he advise T.C.L.E.O.S.E., in writing, of the corrective action taken, no later than July 10, 2005. A copy was sent to James Yarbrough, Galveston County Judge.

The letter from T.C.L.E.O.S.E. was the first notice that Judge Yarbrough received indicating a problem with appellant's licensing status. Until that time, Yarbrough had been satisfied with appellant's job performance. After receiving the letter, Yarbrough was concerned about liability issues that might arise from a constable who was not properly licensed. Yarbrough sent a letter to appellant in early July 2005, noting that appellant's license expired in August 2001 and reminding appellant that a person elected as a constable was required to become licensed by T.C.L.E.O.S.E. within 270 days of taking office. In the letter, the judge also noted that appellant had begun a new term the prior January and therefore had 270 days from the day he took office to complete the training and obtain his peace officer's license. Yarbrough warned appellant that, if he was not successful in obtaining his license within the prescribed time, appellant would be subject to removal from office. He reminded appellant that failure to adhere to licensing requirements increased the exposure of the county and appellant to liability for any misdeeds that might occur, and requested appellant to advise him when appellant resolved the issues identified by the audit.

Shortly after the letter was sent, appellant contacted Yarbrough and told him that "there were mistakes" and that appellant had documentation to prove that he had taken the required courses. Appellant indicated that there were clerical errors in the system that he was working to resolve and added that "they were out to get him." Appellant informed the judge that he had certificates of completion for courses referenced in the audits, and the judge asked appellant to provide the certificates to Harvey Bazaman, the head of the County Legal Department, so that Yarbrough could see them. Bazaman was to act as Yarbrough's agent for the receipt of the certificates. This arrangement was later confirmed in a telephone conversation between all three men.

Appellant provided three documents to Bazaman, two of which appeared to be certificates of completion for two four-hour courses taken at the Galveston County Sheriff's Academy in cultural diversity on March 17, 2003 and identity theft on July 24, 2003. The third document was a training enrollment form for the Galveston County Sheriff's Academy, dated February 10, 2002, for enrollment in courses in intermediate child abuse on April 3, 2002, criminal investigation on September 15, 2002, and intermediate use of force on March 26, 2002. Appellant requested Bazaman to deliver the certificates directly to Yarbrough and Bazaman did so. Yarbrough accepted the certificates in good faith and did not check on their authenticity.

Later review of the proffered certificates by Lieutenant Betty Frey, the training division commander for the Galveston County Sheriff's Office, revealed that, although the certificates were the type of certificates issued by the Galveston County Sheriff's Academy at that time,⁵ the fonts in which appellant's name and the date the course was completed were typed were not ones utilized by the academy at the time the certificates were dated.⁶ The certificates appeared to be legitimate certificates except for the name and dates which appeared to be typed manually, as was done before the academy began using computers in the mid-1990s.⁷ Frey determined that the courses listed on the two purported certificates were not offered on the dates stated on the certificates, and one was not offered by the department until the year following that listed on the certificate. The dates for the classes listed on the enrollment form also did not correspond to actual dates when the courses were offered. Records from the academy and T.C.L.E.O.S.E. confirmed that appellant had not taken any courses at the Galveston County Sheriff's Academy after 1998.⁸ The dates listed for the courses were additionally suspect because, starting in 2002, and continuing for several years, the Galveston County Sheriff's Academy was only permitting Galveston County Sheriff's deputies to enroll in their classes. Appellant would therefore not have been permitted to enroll in courses at the academy during 2002 or 2003. Although her signature appeared on the certificates, Frey denied issuing either certificate to appellant on the dates in question, for the courses in question. She also did not recall any request by appellant after July 7, 2005, to provide him with any certificates of completion, and denied sending the certificates in question to appellant after that date.

In early July 2005, the Galveston County District Attorney asked his chief investigator, Ralph Mutchler, to investigate whether appellant had completed law enforcement training. Mutchler spoke to appellant on two occasions—July 21, 2005, and July 27, 2005—recording the first conversation.⁹ Appellant told Mutchler that he had been in contact with Betty Frey, that her records were incomplete, and that he had obtained training from the Sheriff's office that would demonstrate that his license should not have been suspended. Mutchler suggested that appellant provide him with training certificates and told appellant that he would work with the Sheriff's department to determine if there had been a mistake. Appellant also told Mutchler that he had not received any notice from T.C.L.E.O.S.E. that he was lacking any course work until he received a letter stating that his license had been suspended, and informed Mutchler that he had taken several courses in 2004, 2005, and at the Galveston County Sheriff's Academy after 2001. On July 27, 2005, appellant provided Mutchler a training enrollment form...