Ex Parte Orville Ira Cox v. State

Affirmed and Memorandum Opinion filed April 21, 2009 Affirmed and Memorandum Opinion filed April 21, 2009. In The Fourteenth Court of Appeals ____________ NO. 14-09-00102-CR NO. 14-09-00103-CR ____________ EX PARTE LINDA COX AND ORVILLE IRA COX On Appeal from the 180th District Court Harris County, Texas Trial Court Cause Nos. 766575-A & 766576-A M E M O R A N D U M   O P I N I O N In October 1997, Linda and Orville Cox were charged with engaging in organized criminal activity. They pleaded not guilty before the court, which found them guilty of the lesser offense of theft and assessed punishment at community supervision for ten years. Appellants= retained attorney filed an appeal challenging the legal sufficiency of the evidence to support the convictions. This court affirmed the convictions. Cox v. State, 93 S.W.3d 165 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). On December 11, 2008, appellants filed applications for writs of habeas corpus in the trial court asserting that they are entitled to an out-of-time appeal because the attorney they retained to represent them in the original appeal rendered ineffective assistance of counsel by failing to raise particular issues on appeal. Appellants= claims on appeal arise from the trial court=s denial of their request for an out-of-time appeal. We affirm. Background Appellants, husband and wife, operated three crafts stores under the name of ALinda=s Emporium.@ Pursuant to a written License and Use Agreement, local craftsmen, the complainants, licensed booths within appellants= stores and provided the appellants= inventory. The License Agreement provides that the inventory continued to be owned by the craftsmen. Appellants were required to remit the proceeds from sales of the crafts to the craftsmen, less a commission and a monthly license fee. An appendix to the agreement provided that appellants closed their books for accounting purposes on the 25th of each month. According to the agreement, checks for sales occurring prior to the 25th day of each month were to be mailed to the crafters Aon or about the first.... Minor variances by a very few days may occur periodically, due to holidays and other unavoidable occurrences.@ Appellants began to experience financial difficulties between Thanksgiving and Christmas of 1996. They shuffled money among several banks, withdrew large sums of money in cash, ceased to timely mail crafters their checks, removed and destroyed their business records, and moved out of their home. Appellants paid their landlords $60,000 to keep the doors to their stores open during December, the most profitable month of the year for craft sales. Appellants encouraged the crafters to keep their booths fully stocked. Orville Cox directed employees to prepare the crafters= checks for the month of December, but instructed them not to mail the checks. Fewer than 100 December payment checks were distributed; it was unclear how many were returned for insufficient funds. Some crafters testified that they received December payment checks, but the checks were returned for insufficient funds. Orville=s assistant testified that she drove to the business office of Linda=s Emporium at approximately 9:00 p.m. on January 2, 1997. Appellants were in the business office packing the business records. When Orville=s assistant asked if she should come to work the next morning, Orville told her to come to work, but to keep the doors on the filing cabinets closed. The next morning, January 3, 1997, appellants did not open the business office or the Pasadena store. By 1:00 p.m., all three craft stores were closed. During the first few days of January, a number of the crafters removed their merchandise from the stores because they heard appellants were removing business records. By January 5, 1997, appellants= business accounts were virtually empty; as of that date, appellants owed approximately $350,000 to crafters. Records of sales at appellants= stores eventually were discovered in the garbage. Paula Solomon lived across the street from appellants and was employed by them to clean their home and business office. In December 1996, Solomon noticed that business records were being removed from the office. During that month, while cleaning appellants= home, Linda Cox asked Solomon to help her carry boxes of business records into appellants= home. Later, Solomon noticed a paper shredder in appellants= home. At approximately 11:00 a.m. on January 3, 1997, Solomon was cleaning appellants= home when someone knocked on the door. Linda told Solomon not to answer the door because the store was closing and she expected crafters to come to the house. That night appellants moved out of their home and left in a motor home. After a trial to the bench, appellants were convicted and given a ten‑year probated sentence. One condition of community supervision required that appellants pay $143,887.38 to the crafters. Appellants appealed their convictions to this court on the ground that the evidence was insufficient to sustain a conviction for felony theft. Cox v. State, 93 S.W.3d at 166. This court found the evidence was legally sufficient to enable a rational jury to conclude the complainants, not appellants, had the greater right to possession of the proceeds of the craft sales during a time period identified in the indictment. Id. at 168. Appellants now claim their appellate attorney rendered ineffective assistance of counsel by failing to raise certain issues. The trial court found that appellants= attorney rendered reasonably effective assistance and denied appellants= applications for writ of habeas corpus. In a single issue, appellants claim the trial court abused its discretion in denying the writ. The Record on Appeal The State argues that appellants are not entitled to an out-of-time appeal because they failed to produce the record from their first trial to the trial court. The State argues that because the trial court did not have the benefit of the appellate record, this court may not review it. The cases relied on by the State, however, do not address this unique situation in which appellants complain of ineffective assistance of counsel on appeal. See Ex parte Dixon, 964 S.W.2d 719, 722 (Tex. App.CFort Worth 1998, pet. ref=d) (writ of habeas corpus alleging double jeopardy); Goss v. State, 944 S.W.2d 748, 750 (Tex. App.CCorpus Christi 1997, no pet.) (same); Roberson v. State, No. 14-98-00373-CR, 1999 WL 111168 (Tex. App.CHouston [14th Dist.] March 4, 1999, no pet.) (not designated for publication) (writ of habeas corpus alleging violations of due process and equal protection). Although, as the State argues, it is improper for an appellate court to look to another appellate record to supply deficiency in proof of another case, an appellate court may take judicial notice of its own records in the same or related proceeding involving the same or nearly the same parties. Turner v. State, 733 S.W.2d 218, 221B22 (Tex. Crim. App. 1987); Goodson v. State, 221 S.W.3d 303, 304 (Tex. App.CFort Worth 2007, no pet.). Because appellants= appeal was originally filed in this court, we take judicial notice of the record and the briefs filed in cause numbers 14-99-00293-CR and 14-99-00294-CR. Ineffective Assistance of Counsel Appellants contend their appellate attorney failed to raise critical issues that would have resulted in reversal of their convictions. Specifically, appellants contend their attorney failed to assert that (1) the failure to comply with contractual obligations does not constitute theft by deception, (2) there is no evidence that appellants intended to deprive the crafters of the proceeds at the time the merchandise was sold, and (3) there was a material variance between the indictment and the evidence at trial. The proper standard for evaluating appellants= claim that appellate counsel was ineffective is enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). To sustain appellants= contentions, they must show that (1) their attorney was objectively unreasonable in failing to discover and raise the issues, and (2) but for that failure, they would have prevailed on appeal. Smith, 466 U.S. at 285; Ex parte Balderrama, 214 S.W.3d 530, 533 (Tex. App.CAustin 2006, pet. ref=d). The burden was on appellants to prove their claim by a preponderance of the evidence. See Ex parte Peterson, 117 S.W.3d 804, 818 (Tex. Crim. App. 2003). The trial court filed written findings of fact and conclusions of law. In conducting our review, we accord great deference to the trial court=s findings and conclusions. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006). The trial court concluded that appellants= attorney raised the legal sufficiency of the evidence on appeal, and that his failure to raise a different variant of the legal sufficiency issue was not so obviously wrong as to render his performance ineffective. There is a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance, thus our review of counsel=s performance must be highly deferential. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). A. Legal Sufficiency of the Evidence In appellants= first contention, they assert appellate counsel rendered ineffective assistance by failing to argue that the evidence was legally insufficient to sustain the convictions because the failure to comply with contractual obligations does not constitute theft by deception. In their second contention, appellants assert that appellate counsel rendered ineffective assistance by failing to argue the legal sufficiency of the evidence to support their intent to deprive the crafters of the proceeds when the merchandise was sold. Appellants assert that A[h]ad appellate counsel raised the issue that the evidence was insufficient to establish that appellants intended to deprive the crafters of the proceeds when the merchandise was sold, this Court would have been obligated to reverse the convictions and enter judgments of acquittal.@ In reviewing the issues appellants claim their attorney should have raised, we conclude they were not prejudiced. Appellants first argue there is no evidence of theft by deception. When a defendant receives money voluntarily pursuant to a contract, and thereafter fails to perform, the State must prove that the owner=s consent for the defendant to obtain the money was ineffective due to deception. See Phillips v. State, 640 S.W.2d 293, 294 (Tex. Crim. App. 1982). Second, appellants argue that the failure to pay the crafters pursuant to the terms of the contracts did not establish intent to commit theft at the time the merchandise was sold. In considering these challenges, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The record reveals the following evidence of deception and intent to commit theft at the time the goods were sold: $ Appellants encouraged the crafters to keep their booths fully stocked. $ Appellants paid the landlords to keep the stores open during December despite their financial troubles. $ Appellants instructed their employees to write the crafters= checks for December, but not to distribute them. $ Appellants removed business records from the offices. $ Appellants instructed a manager to open the store, but to keep the empty file cabinets closed. In support of their claim that the evidence was insufficient to show an intent to deprive the crafters of money at the time the merchandise was sold, appellants cite Wilson v. State, 663 S.W.2d 834 (Tex. Crim. App. 1984), and Roper v. State, 917 S.W.2d 128 (Tex. App.CFort Worth 1996, pet. ref=d). In Wilson, the appellant was the manager of a corporation that purchased grain from the complainant. Wilson, 663 S.W.2d at 836. The corporation failed to pay for the grain and the State filed theft charges against its manager. Id. The State argued that the appellant had created a corporation Afor the purpose of allowing the Appellant to conduct business while avoiding both present and prior debts and judgments.@ Id. The State argued that by creating the corporation for such a purpose, the evidence was sufficient to show intent to deprive the owner of property. Id. The court of criminal appeals held that because the corporation was formed in 1972, seven years before the complainant purchased the grain, the State failed to sustain its burden of proof to show that at the time the corporation was formed, the appellant had the requisite intent to deprive the owner of property. Id. at 837. In Roper, the court also found the State did not meet its burden to show intent to deprive the owner of property. In that case, Roper worked as a tractor driver on a farm owned by Terrell. Roper, 917 S.W.2d at 130. Terrell gave Roper permission to sell some of the hay from the farm. Id. at 130B31. Terrell permitted Roper to sell the hay for $16.00 per bale, and permitted Roper to keep $1.00 per bale as commission. Id. at 131. Terrell would accept payment only in cash. Roper testified that Terrell agreed to permit Roper to retain some of the money for wages owed by Terrell. Roper sold some of the hay to a man who paid by check for $1,600 made out to Roper. Roper deposited the check, and after a few weeks, moved to another town because he started a new job. Roper never paid Terrell cash for the hay because he thought he had permission to keep the money until Terrell asked for the extra money. Id. The State=s theory at trial was that Roper committed theft because he had the check made out in his name instead of Terrell=s. The court of appeals held that the case presented a civil contract dispute where the terms of the contract were unclear. Id. at 132. The court found that theft convictions resulting from otherwise civil contractual disputes may warrant reversal for insufficient evidence where there is no evidence supporting the requisite criminal intent. Id. This case is distinguishable from Wilson and Roper because there is evidence supporting the requisite criminal intent. The contract between Roper and Terrell described a consignment arrangement similar to that between appellants and the crafters. However, the terms of the License and Use Agreement in this case were clear in describing what was expected of each party to the contract. Further, there is evidence in this case of appellants= intent to deprive the crafters of their property in that appellants encouraged crafters to stock their booths during the same month they removed business records, intentionally withheld payment, and closed the stores without notice to the crafters.[1] Viewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact reasonably could have concluded that appellants engaged in deception, and intended to commit theft at the time the merchandise was sold. Therefore, appellants were not prejudiced by counsel=s alleged failure to raise those issues. B. Material Variance Between the Allegation of Theft and Evidence that Appellants Misapplied Fiduciary Property Appellants argue that counsel was ineffective for failing to raise a material variance between the indictment and the proof at trial. Appellants were indicted for engaging in organized criminal activity. The trial court found them guilty of the lesser-included offense of theft. Appellants allege that if they committed a crime, it was misapplication of fiduciary property, not theft. A person commits the offense of theft if he unlawfully appropriates property with intent to deprive the owner of the property. Tex. Penal Code Ann. ' 31.03 (Vernon Supp. 2008). A person commits the offense of misapplication of fiduciary property if he intentionally, knowingly, or recklessly misapplies property he holds as a fiduciary in a manner that involves substantial risk of loss to the owner of the property or to a person for whose benefit the property is held. Tex. Penal Code Ann. ' 32.45 (Vernon Supp. 2008). The court of criminal appeals has reversed convictions under general statutes when the prohibited conduct was covered by a more specific statute. See Jones v. State, 552 S.W.2d 836 (Tex. Crim. App. 1977); Ex Parte Pribble, 548 S.W.2d 54 (Tex. Crim. App. 1977); Ex Parte Harrell, 542 S.W.2d 169 (Tex. Crim. App. 1976). However, these cases involved a conviction under a general statute, which provided for a felony punishment, while a special statute provided for a misdemeanor offense. The specific statute controls when sections of the penal code cannot be harmonized. Billings v. State, 725 S.W.2d 757, 760 (Tex. App.CHouston [14th Dist.] 1987, no pet.). An offender should not be made to bear a harsher penalty when the same conduct would otherwise carry a lesser punishment. Boyette v. State, 632 S.W.2d 915, 919 (Tex. App.CHouston [14th Dist.] 1982, pet. ref=d). That a general and a more specific statute might be viewed as proscribing the same conduct does not, standing alone, compel a conclusion that the Legislature intended prosecution of the conduct to be exclusively under the more specific statute. Lomax v. State, 233 S.W.3d 302, 309 (Tex. Crim. App. 2007). In this case, both the general statuteCtheftCand the special statuteCmisapplication of fiduciary propertyCcarry the same punishment range depending upon the value of the property misappropriated. Compare Tex. Penal Code Ann. ' 31.03 and ' 32.45. Therefore, prosecution under either statute subjects the offender to the same range of punishment. If any error existed in the prosecution and conviction of appellant under the general theft statute, it was harmless and would not warrant a reversal. See Boyette, 632 S.W.2d at 920. Therefore, counsel was not ineffective for failing to raise the potential variance. The trial court did not abuse its discretion in denying appellants= out of time appeal. Appellants= sole issue is overruled. The judgment of the trial court is affirmed. /s/ William J. Boyce Justice Panel consists of Justices Anderson, Guzman, and Boyce. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Appellants= encouragement of the crafters to stock their booths was evidence of their intent to increase December sales without warning the crafters that the stores would close.