Monardes, Jaime v. The State of Texas--Appeal from 346th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JAIME MONARDES, )

) No. 08-00-00512-CR

Appellant, )

) Appeal from the

v. )

) 346th District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20000D02314)

)

O P I N I O N

Appellant was indicted for one count of theft over $100,000 and under $200,000, and one count of misapplication of fiduciary property. He was tried by a jury and found guilty of theft. The trial judge sentenced him to 10 years= incarceration. Appellant now brings this appeal, raising two issues for our review: (1) whether the trial court erred by excluding exculpatory testimony and evidence; (2) whether the evidence was legally and factually sufficient to sustain a verdict of guilt. We will affirm the conviction.

Appellant is an owner of a New Mexico corporation, Tri-State Molding and Millwork (ATri-State@). Tri-State had customers throughout the United States.

Tri-State entered into a AFactoring Agreement@ with Prime Funding, Inc. Prime Funding is a factoring company, in the business of buying invoices from companies needing immediate working capital. Tri-State and Prime Funding entered into an agreement whereby Prime Funding would purchase outstanding invoices from Tri-State for collection. Prime Funding would advance Tri-State 75 percent of the total value of each invoice sold. Each invoice sold by

Tri-State to Prime Funding represented that finished product(s) had been shipped to a customer and payment of the total invoice amount was owed. Once an invoice was sold to Prime Funding, the third-party customer would be informed of the factoring agreement and instructed to mail the full amount owed directly to Prime Funding. After full payment was remitted, Prime Funding would deduct the amount already advanced (in this case, 75 percent of each invoice total) and their fee. The remaining balance was then placed in reserve account and ultimately disbursed to Tri-State. The fee charged by a factoring company was based on a percentage of the full face value of an invoice. The longer an invoice is outstanding, the higher the fee charged. Relevant in this case, are multiple invoices related to four different third-party customers.[1]

Appellant engaged in a combination of unlawful acts, including creating false invoices and false supporting documentation, misrepresenting the actual amounts owed to Tri-State on invoices sold to Prime Funding, instructing customers to send payment to Tri-State rather than Prime Funding and subsequently keeping the payment, forging signatures on documents, and failing to fill all or part of customer orders reflected in the invoices. Appellant was convicted of one count of theft over $100,000 and under $200,000, which represents the aggregate amount of money rightfully owed to Prime Funding and taken by Tri-State.

In addition to the criminal charges at issue before this Court, there was civil litgation related to these same matters. Prime Funding obtained a civil judgment against Tri-State in the amount of $159,900. There is also some evidence in the record on appeal that Tri-State conveyed approximately $800,000 in stock to Prime Funding as part of their settlement.[2]

Appellant=s first issue complains the trial court erred by excluding exculpatory evidence. In particular, he contends he should have been able to present evidence of the civil judgment obtained by Prime Funding against him. He also maintains the court erred in excluding evidence that he had honored a personal guarantee to Prime Funding by turning over stock in the amount of $800,000.

The standard of review for claims involving the exclusion of the evidence is abuse of discretion. Matson v. State, 819 S.W.2d 839, 850 (Tex.Crim.App. 1991). A trial court abuses its discretion only if its decision is shown to have been made without reference to guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990). If the decision was within the bounds of reasonable disagreement, the ruling will not be disturbed on appeal. Rachalv. State, 917 S.W.2d 799, 816 (Tex.Crim.App. 1996).

The Appellant asserts that the court abused its discretion by excluding evidence relevant to the element of intent. The gravamen of his argument is that the actions and events occurring since June 1999 mitigate his culpability. He reasons that because actions have been taken to insure Prime Funding will be compensated for their losses, the State cannot prove he intended to permanently deprive Prime Funding of the money owed.

Under Texas law, a person commits the offense of theft if he unlawfully appropriates property with the intent to deprive the owner of it. Tex.Pen.Code Ann. ' 31.03(a)(Vernon Supp. 2002). This requisite intent must exist at the time of the taking. Peterson v. State, 645 S.W.2d 807, 811 (Tex.Crim.App. 1983)(Opin. on reh=g). The theft is complete when the property is in the possession of the taker. Masters v. State, 437 S.W.2d 868, 869 (Tex.Crim.App. 1969). Moreover, a defendant=s intent at a later time does not serve to establish his intent at the time the crime occurs. See Roper v. State, 917 S.W.2d 128, 131 (Tex.App.--Fort Worth 1996, pet. ref=d)(where the court noted, A[w]e cannot infer intent that might have existed at a later date to a previous action@). Further, attempts or agreements to repay, restore or recover the taken property do not alter the intrinsic offense. Robinson v. State, 139 S.W. 978 (Tex.Crim.App. 1911). Texas jurisprudence is repleat with cases holding appellants criminally responsible for theft, despite subsequent repayment or restitution. See Griffin v. State, 614 S.W.2d 155, 159 (Tex.Crim.App. [Panel Op.] 1981); Donald v. State, 453 S.W.2d 825, 828 (Tex.Crim.App. 1969); Washington v. State, 881 S.W.2d 187, 193 (Tex.App.--Houston [1st Dist.] 1994, no pet.); Ellis v. State, 714 S.W.2d 465, 475 (Tex.App.--Houston [1st Dist.] 1986, pet. ref=d).

Here, Appellant sought to introduce evidence of a civil judgment taken against him. The State objected, arguing the evidence was not relevant. After a lengthy discussion, the court sustained the objection. While the author might disagree, the trial court=s evidentiary ruling was neither arbitrary or unreasonable. Rachal, 917 S.W.2d at 816. Accordingly, we find no abuse of discretion by the trial court. Appellant=s first issue is overruled.

Appellant=s second issue challenges the sufficiency of evidence supporting the verdict of guilt. Appellant argues the evidence was both legally and factually insufficient to establish the element of intent. He contends that evidence adduced at trial demonstrated his intent to pay back any money owed to Prime Funding. In particular, he points to the testimony of Roderick Scott indicating Prime Funding=s awareness of Tri-State=s financial difficulties and the mutual steps taken to cover invoices that were short.[3]

In reviewing the legal sufficiency of evidence, the critical inquiry is whether the trial court could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991), cert. denied, 502 U.S. 870, 112 S. Ct. 202, 116 L. Ed. 2d 162 (1991); Taylor v. State, 921 S.W.2d 740, 744 (Tex.App.--El Paso 1996, no pet.). We view the evidence in the light most favorable to the verdict, and apply this same standard in reviewing the sufficiency of both direct and circumstantial evidence. Geesa v. State, 820 S.W.2d 154, 159-61 (Tex.Crim.App. 1991). Our role is not to judge the credibility of the evidence presented or to substitute our evaluation of the facts for those of the jury. Sharpe v. State, 881 S.W.2d 487, 488 (Tex.App.--El Paso 1994, no pet.). Moreover, reconciliation of conflicts in the evidence is within the exclusive domain of the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App. 1986). Our sole duty is to determine if the explicit and implicit findings of the jury are rational when the evidence admitted at trial is viewed in a light most favorable to the verdict. Adelman v. State, 828 S.W.2d 418, 422 (Tex.Crim.App. 1992); Garcia v. State, 16 S.W.3d 401, 404 (Tex.App.--El Paso 2000, pet. ref=d). As such, the reviewing court serves as the final due process safeguard and surety of the fact finder=s rationality. Sharpe, 881 S.W.2d at 488-89.

In contrast, a review of the factual sufficiency of evidence requires an appellate court to consider all of the evidence presented in a neutral fashion. Moncada v. State, 960 S.W.2d 734, 740 (Tex.App.--El Paso 1997, pet. ref=d). A verdict is set aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996); Taylor, 921 S.W.2d at 745. Expressed differently, evidence may be found to be factually insufficient if the guilty verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). Again, the reviewing court cannot substitute its conclusions for those of the jury. Davila v. State, 930 S.W.2d 641, 647 (Tex.App.--El Paso 1996, pet. ref=d). It is therefore not within our province to interfere with the jury=s resolution of conflicts in the evidence or to judge the weight or credibility of the witness=s testimony. Moncada, 960 S.W.2d at 740. Where conflicting evidence is presented, the jury=s determination on such matters is generally regarded as conclusive. Johnson, 23 S.W.3d at 9; Chesnut v. State, 959 S.W.2d 308, 311 (Tex.App.--El Paso 1997, no pet.).

The State presented a large amount of evidence to substantiate the charge that Appellant had committed theft. Testimony established Tri-State had sold false invoices to Prime Funding. The testimony of Brian Mundell also indicated the supporting documentation used by Tri-State to assure the validity of the information on the invoice was falsified. Roderick Scott=s testimony clearly established Prime Funding had advanced money to Tri-State on the basis of the falsified invoices and other bogus documentation. Additionally, both Roderick Scott and Bob Rivas told the jury that when confronted, Appellant had admitted that contrary to the assertions in the invoices, some shipments had not occurred or included only a portion of the goods indicated on the invoice. Witnesses also testified Appellant knew his actions were improper. The prosecution=s case was further bolstered by testimony from representatives of each of the

third-party companies listed in the falsified invoices. Each of these witnesses stated on record the invoices presented to Prime Funding were fraudulent. Three of the four representatives affirmatively indicated Appellant had conducted business with them in the past and was aware of proper business and accounting procedures. Finally, the State established Appellant had received payments from third-party customers which rightfully belonged to Prime Funding, but he had nonetheless kept the monies himself.

The only witness testifying on behalf of the defense at trial was Appellant=s wife, Patricia Monardes. She testified to her role as both accountant and custodian of records for Tri-State.[4] She explained that in at least one instance, Prime Funding was aware of and gave permission to Appellant to keep a payment that should have been forwarded to them under the agreement. Mrs. Monardes also told the jury she was aware that partial shipments had been made on some invoices, but stated that A[w]e had permission to do that, in the industry.@ She testified that her husband was trying to fill all orders, but that the business experienced poor profits and slow supplies of lumber accompanied by higher costs. Mrs. Monardes claimed no knowledge of false invoices, but did admit Appellant owed Prime Funding $126, 927.[5]

When viewed in a light most favorable to the verdict, the evidence presented would allow a rational jury to find the essential elements of the offense theft. Turner, 805 S.W.2d at 427. Intent to commit a crime may be determined by the words and acts of the accused. Griffin, 614 S.W.2d at 159. A jury may also look to the circumstances surrounding the event. Lewis v. State, 715 S.W.2d 655, 657 (Tex.Crim.App. 1986). In this particular case, the evidence was largely uncontested that Appellant had used illegal and deceptive means to secure money for himself that rightfully belonged to another. As previously discussed, Appellant=s later attempts at remuneration do not alter his intent at the time he created and employed false invoices, documentation, and pretenses to fraudulently procure money from Prime Funding. See Roper, 917 S.W.2d at 131.

At oral argument, the Appellant made a plausible argument that there was no evidence that he had the necessary criminal intent at the outset of the factoring agreement or on the date of the course of continuing conduct specified by the indictment. Indeed, it is a general criminal law concept that criminal intent must precede or be simultaneous with the overt offending act. But, by the same token, where in criminal law can restitution nullify a crime abinitio?

We conclude that the evidence of guilt is formidable. Though the defense presented some evidence in conflict with that of the State, it was the jury=s responsibility to draw reasonable conclusions from all the evidence and resolve any contradictions. Moncada, 960 S.W.2d at 740. We find nothing to suggest the jury=s verdict was clearly wrong and unjust, nor was it against the great weight of evidence. Johnson, 23 S.W.3d at 11. As such, we find the evidence supporting Appellant=s guilt to be factually sufficient. Appellant=s second issue is overruled.

Finding no error, the judgment of the trial court is affirmed.

October 31, 2002

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

[1] The invoices at issue in this case were related to four third-party customers: Concannon Lumber Company of Portland, Oregon; Intermountain-Orient of Atlanta, Georgia; Jim White Lumber and Mill Works of South Carolina; Huttig Sash and Door of Missouri.

[2] Testimony at trial established Appellant had signed a personal guarantee backing the agreement between Tri-State and Prime Funding. On direct-examination, Patricia Monardes testified that almost $800,000 worth of stock had been turned over to Prime Funding. The State objected to the testimony. The trial court sustained the objection and instructed the jury to disregard the comment. Later, the defense established a bill of exception for appellate purposes. At that time, Mrs. Monardes testified that the personal guarantee given to Prime Funding was backed by $800,000 in company stock.

[3] In his brief, Appellant refers to other evidence, such as the civil judgment, to bolster his argument that he did not intend to permanently deprive Prime Funding of the amounts owed. He also relies on evidence of his personal guarantee and the turning over of approximately $800,000 in stock to Prime Funding as a partial satisfaction of the debt. However, the additional evidence to which he refers was not before the jury at trial.

[4] Through her testimony, the defense admitted copies of a check that had been correctly forwarded to Prime Funding. However, this check was not part of theft for which Appellant was charged. Instead, this evidence tended to support both parties= contentions that some of the transactions between Tri-State and Prime Funding were handled properly and lawfully.

[5] As a rebuttal witness to Mrs. Monardes, the State called Sergio Gonzalez. Mr. Gonzalez testified he was an attorney and had dealings with Mrs. Monardes in the past which allowed him to come to know her character. He then stated that in his opinion she was untruthful.