Margaret Dean Berg A/K/A Mardean Berg v. State

Opinion filed December 21, 2006 Opinion filed December 21, 2006 In The Eleventh Court of Appeals __________ Nos. 11-06-00092-CR & 11-06-00093-CR __________ MARGARET DEAN BERG A/K/A MARDEAN BERG, Appellant V. STATE OF TEXAS, Appellee On Appeal from the 350th District Court Taylor County, Texas Trial Court Cause Nos. 7261-D and 7262-D O P I N I O N Margaret Dean Berg a/k/a Mardean Berg was indicted for theft[1] and misapplication of fiduciary property.[2] She filed petitions for writ of habeas corpus contending that the charges were barred by double jeopardy because of a prior acquittal. The trial court held an evidentiary hearing and denied Berg=s petitions. We affirm. I. Background Facts Berg was originally indicted in 2002 for intentionally and knowingly appropriating property from Jim Taylor in a total aggregate amount of between one and two hundred thousand dollars pursuant to one scheme and continuing course of conduct which began on or about May 5, 2000, and continued until on or about February 16, 2001. Berg pleaded not guilty. She waived a jury and was tried in 2004. The trial court found her not guilty and entered a judgment of acquittal. In 2005, the grand jury returned two new indictments against Berg. The indictments named Jim Taylor and Bobbie Taylor different victims, but were otherwise identical. Each alleged that Berg had intentionally and knowingly appropriated property of the total aggregate value of two hundred thousand dollars or more pursuant to one scheme and continuing course of conduct beginning on or about January 9, 1998, and continuing until on or about April 27, 2000. Each also alleged in a second count that, during this same period of time, Berg intentionally, knowingly, and recklessly misapplied property that she held as a fiduciary. Berg filed petitions for writ of habeas corpus contending that the indictments were barred by double jeopardy because of her previous acquittal. The trial court held an evidentiary hearing. Berg established that the checks and other documents upon which the prosecution intended to rely had all been introduced into evidence during the 2004 trial, and she asked the court to dismiss the 2005 indictments. The State answered that the 2005 indictments covered a different time period from the original indictment and that the evidence directly attributable to the time period covered by the 2005 indictments was offered in the 2004 trial to show intent. The trial court denied the petitions. II. Issues In each case, Berg challenges the trial court=s decision with one issue contending that, because the State opted to charge her in 2002 with theft pursuant to a single scheme and continuing course of conduct and because the State relied upon the same evidence in the first trial that it intended to use in the second, double jeopardy bars it from relitigating her liability. III. Standard of Review In a writ of habeas corpus hearing, the burden of proof is on the petitioner to prove its allegations by a preponderance of the evidence. Kniatt v. State, No. PD-0323-05, 2006 WL 1710881 (Tex. Crim. App. June 20, 2006); Ex parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim. App. 1995). We view the evidence in the light most favorable to the trial court=s ruling and accord great deference to the trial court=s findings and conclusions. Ex parte Bruce, 112 S.W.3d 635, 639 (Tex. App.CFort Worth 2003, pet. dism=d, untimely filed). Absent a clear abuse of discretion, we accept the trial court=s decision whether to grant the relief requested in a habeas corpus application. Ex parte Spaulding, 612 S.W.2d 509, 511 (Tex. Crim. App. 1981). IV. Analysis Berg alleges that, because she was acquitted in 2004, the 2005 indictments are barred by traditional double jeopardy notions or, alternatively, because of collateral estoppel. Both the United States Constitution and the Texas Constitution protect individuals from multiple punishments for the same offense. Montgomery v. State, 91 S.W.3d 426, 429 (Tex. App.CEastland 2002, pet. ref=d). The Double Jeopardy Clause of the United States Constitution provides: A[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.@ U.S. Const. amend. V. The Texas Constitution states: ANo person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.@ Tex. Const. art. I, ' 14. The Texas Constitution provides slightly more expansive protection when prosecutorial misconduct prompts a defendant to seek a mistrial. Bauder v. State, 921 S.W.2d 696, 699 (Tex. Crim. App. 1996). But the two provisions provide the same level of protection for successive prosecutions following an acquittal. See Ex parte Pool, 71 S.W.3d 462, 466 (Tex. App.CTyler 2002, no pet.) (the two constitutional provisions are conceptually identical). The starting point in any double jeopardy analysis is the ABlockburger test.@ This permits successive prosecutions for the same criminal act or transaction under two statutes if each statute requires proof of an additional fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304 (1932). In the first indictment, Berg was charged with theft. See Tex. Pen. Code Ann. ' 31.03(a) (Vernon Supp. 2006). In the 2005 indictments, Berg was not only charged with theft but also with the misapplication of fiduciary property. See Tex. Pen. Code Ann. ' 32.45 (Vernon Supp. 2006). Section 31.03(a) requires proof that the defendant (1) unlawfully (2) appropriated property (3) with the intent to deprive the owner of it. Section 32.45 requires proof that the defendant (1) intentionally, knowingly, or recklessly (2) misapplied property (3) that it held as a fiduciary. Each statute contains at least one unique element. Consequently, the trial court did not abuse its discretion when it held that Berg could be prosecuted for misapplication of fiduciary property. The 2002 indictment and the 2005 indictments rely upon the same statutory provision for their theft allegations. The Blockburger test, therefore, is not applicable. Vineyard v. State, 958 S.W.2d 834, 837 n.5 (Tex. Crim. App. 1998). The State argues that in this instance we must conduct the additional analysis set out in Grady v. Corbin, 495 U.S. 508 (1990). Grady, however, was expressly overruled in 1993 by United States v. Dixon, 509 U.S. 688 (1993).[3] Grady and many of the cases cited by the State that rely upon Grady are unhelpful to our analysis. Instead, we must determine if the alleged conduct constitutes more than one offense under the statute. Bailey v. State, 44 S.W.3d 690 (Tex. App.CHouston [14th Dist.] 2001), aff=d, 87 S.W.3d 122 (Tex. Crim. App. 2002). The legislature defines whether offenses are the same by proscribing the Aallowable unit of prosecution@ that is a distinguishable discrete act that is a separate violation of the statute. Iglehart v. State, 837 S.W.2d 122, 130 (Tex. Crim. App. 1992), disapproved on other grounds by Bailey, 87 S.W.3d 122. With conduct-oriented statutes, the general rule is that each victim is the allowable unit of prosecution. Ex parte Gonzalez, 147 S.W.3d 474, 477 (Tex. App.CSan Antonio 2004, pet. dism=d, untimely filed). In Iglehart, the defendant was charged with misdemeanor theft of property from one owner. He was later indicted for felony theft of property from a second owner. Both thefts arose from the same transaction. The court held that the legislature intended for an offense to be complete when there was an unlawful appropriation of property coupled with an intent to deprive each owner of their property. 837 S.W.2d at 127. Because the defendant stole from two owners, the applicable statute imposed two units of prosecution. Id. Berg=s 2002 indictment accused her of committing theft against Jim Taylor. The 2005 indictment in Cause Number 7262-D accused Berg of committing theft against Bobbie Taylor. Berg argues that the property that forms the basis of the 2005 indictments is owned jointly by Jim and Bobbie Taylor as husband and wife and, therefore, that there is only one victim for purposes of units of prosecution.[4] Berg did not raise this issue in her petition, did not cite any evidence to support it, and did not discuss it during the habeas hearing.[5] Consequently, the trial court did not abuse its discretion by finding that Berg could be prosecuted for theft under both indictments. Berg=s challenge to her prosecution for theft from Jim Taylor rests primarily upon her contention that this is barred by collateral estoppel because the trial court necessarily determined that she did not appropriate property from Jim Taylor pursuant to one scheme and continuing course of conduct between 1997 and 2001. The doctrine of collateral estoppel is embodied within the constitutional bar against double jeopardy, but the two are not identical. Ex parte Watkins, 73 S.W.3d 264, 267 (Tex. Crim. App. 2002). Double jeopardy bars any retrial of a criminal offense. Dixon, 509 U.S. at 695-96. Collateral estoppel prohibits relitigating an ultimate issue of fact that has been determined by a valid and final judgment. Ashe v. Swenson, 397 U.S. 436, 443 (1970). Application of the collateral estoppel doctrine requires that we first determine whether the trial court determined a fact in the 2004 trial and, if so, that we then determine how broad B in terms of time, space, and content B was the scope of its finding. Watkins, 73 S.W.3d at 268. Before collateral estoppel will bar relitigation of a discrete fact, that fact must necessarily have been decided in the defendant=s favor in the first trial. The mere possibility that a fact may have been determined in the first trial is insufficient to bar its relitigation in a second trial. Id. The trial court did not elaborate on its decision to acquit Berg. Following the trial, the court announced: The file will reflect as a result of a trial held June 12th, testimony was received. I have reviewed all the documents contained therein that were produced to the Court, and I find you not guilty of the offense as alleged in the indictment. I will note there is a civil suit pending. You may well have overstepped the bounds of your authority, but that will be decided in that civil suit. The absence of a specific fact finding requires that we otherwise determine if the acquittal necessarily involved a specific factual determination in Berg=s favor. Berg=s collateral estoppel argument relies heavily upon the Supreme Court=s decision in Ashe, 397 U.S. 436. But in Ashe, unlike the present case, there was only one contested issue. Six men were robbed at gunpoint by three or four masked gunmen. The defendant was tried on charges of robbing one of the six men. He did not dispute that the robbery had occurred exactly as alleged, but did dispute that he was one of the gunmen. Because this was the only disputed issue, the defendant=s acquittal necessarily meant that the jury believed he was not one of the gunmen and, therefore, that he could not be prosecuted for robbing any other victim. Id. at 445. Berg=s trial involved more than one issue. The State introduced evidence that Berg was employed by Taylor Grain and Taylor Investments. For Taylor Grain her compensation was $1,000 per month, plus 15% of the business=s net profits. For Taylor Investments she was paid $17,000 per year, plus 4% of the business=s net profits. For the time period covered by the indictment, May 2000 through February 2001, her total compensation would have been $29,297. However, a total of $190,084.16 was transferred from various Taylor entities into her bank account. Berg testified and disputed the State=s characterization of the transactions. She testified that Jim Taylor=s father, Joe Taylor, gave her money to pay other employees so that he could avoid withholding. She testified that $59,000 was transferred to her as a loan for a commodities transaction. She also disputed the description of her Taylor Grain compensation package. She testified that she initially received 5% of the net profits but that in 2000 this was changed to 5% of any increase in sales. In Ashe, the Supreme Court instructed lower courts to Aexamine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.@ Id. at 444. The trial court could have believed Berg=s testimony that her Taylor Grain compensation package changed in 2000 from a net-profits interest to a percentage of any sales increase or that some of the cash transfers represented loans or compensation for other employees. These conclusions would establish the propriety of the transactions covered by the 2002 indictment but would have no direct impact on any other transaction. For example, the decision in 2000 to change Berg=s compensation from a net-profits interest to a sales-based interest has no bearing on her prior compensation. Berg additionally argues that collateral estoppel is established because she was indicted for engaging in a single scheme and continuing course of conduct and the State introduced evidence of transactions from 1997 through 2001. Berg did an admirable job of establishing at the habeas corpus hearing that the State relied upon bank records, income tax returns, checks, and other financial records covering 1998 through 2001 and that the State would use this same evidence at the second trial. Berg concludes that the State had one full and fair opportunity to convict her and that it violated her constitutional rights to provide the State with an opportunity to refine its presentation in hopes of obtaining a better result. Berg=s concern is not without merit. See Arizona v. Washington, 434 U.S. 497, 503-04 (1978) (a second prosecution may be grossly unfair because it increases the financial and emotional burden on the accused, prolongs any period of stigmatization, and may enhance the risk that an innocent person will be convicted). However, because Berg was only in jeopardy of conviction for theft occurring during the time period covered by the 2002 indictment, double jeopardy does not bar her prosecution for thefts allegedly occurring during different time periods. The State=s intention to rely upon some or all of the same documentary evidence in a second trial is clearly relevant, but this alone does not conclusively establish double jeopardy because the evidence may serve different purposes in different proceedings. For example, in United States v. Felix, 503 U.S. 378 (1992), the defendant was convicted in Missouri of attempting to manufacture methamphetamine. Id. at 380. During the trial, the prosecution introduced evidence that the defendant had also manufactured methamphetamine in Oklahoma to rebut his contention that he was operating Aunder the mistaken belief that he was working in a covert DEA operation.@ Id. at 381. The defendant was then indicted in Oklahoma for conspiracy to manufacture, possess, and distribute methamphetamine. The government introduced much of the same evidence at the Oklahoma trial that it used in the Missouri trial. Id. at 381-82. The Supreme Court rejected the argument that the overlap in proof between the two prosecutions established a double jeopardy violation, writing that, Ano matter how much evidence of the Oklahoma transactions was introduced by the Government to help show Felix=s state of mind, he was not prosecuted in the Missouri trial for any offense other than the Missouri attempt offense with which he was charged.@ Id. at 385-86. A similar situation is present here. During the 2004 trial, the State tendered a summary of the cash transfers from the Taylor entities to Berg=s bank account. When the witness was asked about her summary for 1998, Berg=s attorney made the following objection: Judge, I object to any questions regarding to that. He=s asking for checks that were written in 1998. The indictment says May 5th, 2001 until -- or, excuse me -- May 5th, 2000 until February 22nd, 2001. Anything other than that are extraneous offenses and they are not admissible. The State agreed this was extraneous offense evidence, but responded that it was admissible to show intent and absence of mistake. The trial court allowed the testimony. The admission of this evidence for a limited purpose also limits its double jeopardy impact. In Ex parte Goodbread, 967 S.W.2d 859, 860 (Tex. Crim. App. 1998), the court held that, when a defendant was indicted for committing certain acts of unlawful sexual conduct on or about a specific date, the indictment did not create a double jeopardy bar to prosecution on subsequent indictments with different offense dates because they were separate offenses. The court recognized that, if evidence of more than one offense is admitted and a conviction for either could be had under the indictment and if the State makes no election, double jeopardy would preclude a subsequent prosecution. Id. An election would be some action that excludes or limits the consideration of an offense, such as limiting the purpose for which the evidence is offered. Id. at 861 n.2. In Ex parte Goodman, 152 S.W.3d 67, 71-72 (Tex. Crim. App. 2004), the court held that jeopardy only attaches to the specific crimes for which the defendant faced conviction. In this case, the defendant was originally indicted for committing theft on one specific date. The State dismissed the indictment during the trial and reindicted him for aggregated theft. The new indictment alleged that the defendant engaged in a single scheme and course of conduct over a several month period of time. The court held that this was permissible because the initial indictment placed the defendant in jeopardy of conviction of only one theft. The State could not attempt to relitigate that specific theft, but could still prosecute the defendant for any other act of theft. Berg distinguishes cases such as Goodbread and Goodman by correctly noting that she was not indicted in 2002 for specific, identifiable acts of misconduct. Instead, the State indicted her for one scheme and continuing course of conduct. Berg argues, therefore, that any alleged misconduct was bundled into the one charge. This is especially true, she argues, because the State presented testimony of all possible acts of misconduct in accordance with that one scheme and continuing course of conduct. Tex. Pen. Code Ann. ' 31.09 (Vernon 2003) allows the State to join multiple instances of theft into a single offense and to aggregate the value. The statute is permissive. The State is not required to aggregate the amounts of individual acts of theft. Dickens v. State, 981 S.W.2d 186 (Tex. Crim. App. 1998). The 2002 indictment elects to aggregate the alleged acts of theft from May 5, 2000, through February 16, 2001. Because the statute is permissive and the 2002 indictment identified a specific period of time, the mere fact that the State alleged Berg committed one scheme and course of conduct does not mean jeopardy attached to any transaction outside this time period. The trial court did not abuse its discretion when it held that the theft allegations in the 2005 indictments were not barred by double jeopardy. In each case, Berg=s issue is overruled. V. Holding The trial court=s orders are affirmed. RICK STRANGE JUSTICE December 21, 2006 Do not publish. See Tex. R. App. P. 47.2(b). Panel consists of: Wright, C.J., McCall, J., and Strange, J. [1]Cause No. 11-06-00092-CR. [2]Cause No. 11-06-00093-CR. [3]We note the State cited Dixon in its brief as well. [4]Double jeopardy protects not only against successive prosecutions, it also protects against multiple punishments for the same offense. See Ex parte Rhodes, 974 S.W.2d 735, 738 (Tex. Crim. App. 1998). The only issue before us is whether Berg can be prosecuted under the 2005 indictments. We express no opinion on what impact, if any, this argument might have on any permissible punishment. [5]Berg did introduce the transcript of the 2004 trial into evidence during her habeas hearing. This transcript establishes that Jim and Bobbie are married and are partners in Taylor Investments. That does not foreclose the possibility that they have separate property interest. Therefore, we cannot say it is sufficient to establish an abuse of discretion, particularly since this issue was not brought to the trial court=s attention.