MORRIS LAMAR MOSLEY, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed December 29, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-01315-CR
No. 05-09-01316-CR
No. 05-09-01317-CR
............................
MORRIS LAMAR MOSLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No.'s F08-00911-VW, F08-02000-VW, and F09-18663-VW
.............................................................
OPINION
Before Justices Richter, Lang, and Myers
Opinion By Justice Richter
         Appellant engaged in a scheme in which he held himself out as a property manager and unlawfully entered and leased vacant foreclosure properties to unsuspecting tenants. The State charged appellant with the offense of securing the execution of a document by deception (“SEDD”) and two counts of burglary with the intent to commit the felony offense of SEDD. See Tex. Penal Code Ann. § 32.46(a)(1) (West Supp. 2010); Tex. Penal Code Ann. § 30.02(a)(1) (West 2003). The SEDD offense and one of the burglary offenses involved a property known as the Matterhorn residence and the other burglary offense involved a property known as the Cliff Heights residence. Appellant plead not guilty, and following a jury trial, was found guilty of all three offenses. The jury assessed punishment, enhanced by a prior conviction, at two years' imprisonment in the SEDD case and nineteen years' imprisonment in each burglary case. In six issues on appeal, appellant challenges the legal and factual sufficiency of the evidence to support his convictions and asserts the trial court erred in classifying his prior military conviction as a felony for enhancement purposes. Concluding appellant's arguments are without merit, we affirm the trial court's judgments.
I. BACKGROUND
The Matterhorn Residence
         The evidence adduced at trial established that Aora Loan Servicing (“ALS”) owns the Matterhorn residence that appellant purported to lease to Christopher Tyler. ALS has no ties to appellant and never gave appellant the authority to show the house or rent it.
        At trial, Tyler testified that he spoke with appellant by phone and appellant agreed to show him properties with monthly lease payments in the $600-$800 range. When Tyler met appellant at a Waffle House, appellant told him he was with “STS Management Properties” and showed him a business card. Appellant did not allow Tyler to keep the card because it was the only one he had. Then, appellant took Tyler to view three different properties.
        When they arrived at the Matterhorn residence, appellant opened the front door with a key. Tyler stated that appellant showed him the property's amenities, including the rooms, closet space, and water pressure. Appellant also offered suggestions about arrangement of the rooms. Appellant told Tyler the monthly rental for the house was $700, and a $700 deposit was required. Tyler and appellant discussed signing a lease, and Tyler told appellant he wanted a one-year lease.
        Tyler stated that he and appellant returned to the Waffle House, where he gave appellant $700 in exchange for the keys and a receipt for $1,400.   See Footnote 1  Tyler moved a few things into the house that night, and officially moved in four days later. Tyler still did not have his lease agreement, and contacted appellant repeatedly, but appellant told him he was “busy.” Finally, about three days after Tyler moved in, appellant told Tyler he would “have his guy bring it out.” A gentleman named “Mel” came to Tyler's door and stated that appellant sent him over with the lease. Tyler testified that he believed appellant had the authority to lease the property, and that appellant acted like a realtor and seemed to know what he was doing. Tyler stated that he signed the lease because he was relying on appellant's statements.
        Melchi Catholic testified that he attended the church where appellant was the head pastor. On May 16, appellant asked him to take a lease to Tyler at the Matterhorn residence. Catholic did so, and presented Tyler with a fill-in-the-blanks lease. Catholic stated that he had delivered leases for appellant on other occasions as well. Catholic first testified that he purchased the lease form from an office supply store. Catholic later stated, “If I bought it, I'm sure I bought it at Office Depot.” The State then confronted Catholic with the written statement in which Catholic says that appellant asked him to “take this lease to Matterhorn.”
        Catholic claimed that review of the statement did not refresh his recollection about whether he had purchased the lease form or appellant had given it to him. Although Tyler recalled that he sat with Catholic while appellant was on the speaker phone dictating the terms of the lease, Catholic did not recall having appellant on the speaker phone. Tyler confirmed that the lease terms that were filled in on the lease Catholic delivered were the terms he and appellant had discussed on May 9, except he did not recall any discussion about pet fees. Catholic signed the lease for “STS Property Management.” Catholic testified that he had signed a lease on behalf of STS Property Management on a previous occasion and had done so at appellant's request. Less than two weeks after Tyler signed the lease, a constable knocked at his door and handed him an eviction notice. Tyler contacted the police.
The Extraneous Offense.
        There was also extensive trial testimony about an extraneous offense not alleged in the indictment. The offense involved a property located on Sax Leigh Street that appellant purported to lease to Linda Smith. Appellant showed Smith the property and “leased” it to her for a year for $1,200 a month and a $400 deposit.
        When Smith took possession of the property she paid appellant $500 and promised to pay the remainder in a couple of weeks. On the day the remaining rent was due, appellant called Smith and told her he was sending “his partner” to collect the rent. A man who identified himself as “Johnny Johnson” arrived to collect the rent and handed Smith a fill-in- the-blanks lease with the terms filled in. The lease was already signed by Johnny Johnson. Smith believed the lease was legitimate and that appellant had the authority to lease the residence, but soon learned otherwise. Three days after she signed the lease, a real estate broker contracted by Bank of America to handle the newly foreclosed property knocked at Smith's door. Smith then learned that the owner of the property had never met or talked to appellant and had never given him permission to lease the house.
The Cliff Heights Residence.
        Smith relayed what had happened to her friend Diane Kirk, and they contacted Special Investigator Andrew Masters with the Dallas Police Department to set up a “sting” operation. Kirk and appellant subsequently spoke on the phone. Kirk told appellant she was looking for a house and appellant told her “you got money, got you houses.” Kirk and appellant arranged to meet at the Cliff Heights residence the following day.
        Before the meeting, Investigator Masters drove by the property to perform a safety check. He observed appellant standing near the water meter with a tool to access the water. When Smith and Kirk arrived at the residence, appellant was already there. Appellant asked Kirk “Do you have any money?” Kirk stated that she wanted to see the house first so appellant showed her the house.
        During trial, the State played an audiotape of a conversation between Kirk and appellant at the residence. During the conversation, appellant told Kirk the rent was $600 a month for six months. Appellant also said the agreement could be renewed after six months or Kirk could upgrade to another house for the same rent. Kirk asked appellant if he had any paperwork, but appellant's response is not audible. When appellant asked Kirk for her money, she walked outside to get her purse. Appellant followed, and was arrested on the sidewalk.
        After appellant was arrested, Investigator Masters found ten to twelve sets of house keys in his possession. During the inventory of appellant's car, police found several sets of new door locks with all of the packages opened and a few missing door knobs. The police also found a set of drills, a notebook with five fill-in-the-blank lease forms that were identical to the forms Smith and Tyler received, and a list of foreclosed homes. Investigator Masters testified that he believed appellant gained access to the foreclosed homes by drilling the original door locks out and replacing them with new locks and keys.
II. DISCUSSION
 
Burglary
        In his first four issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction for burglary of the Matterhorn residence and the Cliff Heights residence. The Texas Court of Criminal Appeals has overruled Clewis v. State, holding that the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.) This standard requires the reviewing court to determine whether, considering all of the evidence in the light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a reasonable doubt. Id. at 899 (citing Jackson v. Virginia, 443 U.S. at 319). We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Id. at *5. Therefore, we will conduct a single review of appellant's sufficiency complaints under the Jackson standard.
        A person commits the crime of burglary if, without the effective consent of the owner, he (1) enters a habitation, (2) with the intent to commit a felony. See Tex. Penal Code Ann. § 30.02(a)(1). A person acts with “intent” when he has a conscious objective to engage in the conduct or cause the result. Tex. Penal Code Ann. § 6.03(a) (West 2003). Intent to commit a felony may be inferred from all the surrounding circumstances. Moreno v. State, 702 S.W.2d 636, 641 (Tex. Crim. App. 1986).
        Appellant does not dispute that he entered the Matterhorn property without the owner's consent. Instead, his challenge is focused on the “intent” element of the offense. In this regard, appellant contends the evidence is insufficient to establish he intended to secure the execution of the lease on the Matterhorn residence. Alternatively, appellant argues the evidence fails to establish he had the requisite intent at the time he entered the property. Likewise, appellant argues there was no evidence he intended that Kirk sign a lease on the Cliff Heights residence or that a lease on the Cliff Heights residence was ever signed.
        Intent and knowledge are fact questions for the jury and are almost always proven through evidence of the circumstances of the crime. Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999). In support of his argument concerning the Matterhorn residence, appellant points to the fact that Tyler had to contact him repeatedly about the signing of the lease. While this is true, this fact does not establish that appellant did not want to execute a lease or that he deemed it unnecessary. The evidence showed that the lease terms were discussed at the time appellant showed Tyler the property. From this fact the jury could reasonably infer that appellant intended to secure execution of the lease at the time he showed Tyler the property. Appellant also insists his lack of intent is established through Tyler's testimony that he did not make a final decision about leasing the property until he returned to the Waffle House. Tyler's thought process, however, is immaterial to appellant's state of mind when he took Tyler to view foreclosure properties and gave him the tour of the Matterhorn property.
        The fact that a lease was never signed on the Cliff Heights residence is also of no consequence to our inquiry concerning intent. Because appellant was charged in the burglary case with the intent to commit a felony, the State was not required to prove the felony was actually committed. See Tex. Penal Code Ann. § 30.02 (a)(1). Appellant showed Kirk the property and discussed the terms of the lease at the time he showed the property. The blank lease agreements found in appellant's car were identical to those signed by Tyler and Smith. This evidence was sufficient to support an inference that appellant had a conscious objective to engage in the conduct or cause the result.
        The jury could also consider the extraneous offense evidence in determining whether appellant intended to secure the execution of the leases. Evidence of an extraneous offense may be admissible to show intent. See Tex. R. Evid. 404(b); Lopez v. State, 316 S.W.3d 669, 678-79 (Tex. App. - Eastland 2010, no pet.) (evidence pertaining to home repair contractor's dealings with other customers admissible to show intent in theft arising from construction contract). The extraneous offense evidence admitted without objection demonstrated appellant deceived a potential client, entered and showed a foreclosure property, and agreed upon the terms of rental, all of which culminated in the execution of a written lease. Thus, there was additional evidence for the jury to consider in determining whether it was more or less probable that appellant intended to secure the execution of a lease on the Matterhorn and Cliff Heights properties.
         Because appellant did not testify, there is no direct evidence of his state of mind and the jury could only make inferences about his intent based upon all of the circumstances. See Moreno, 702 S.W.2d at 641.Viewing the evidence from which these inferences were drawn in a light most favorable to the verdict, we conclude the jury was rationally justified in finding guilt beyond a reasonable doubt. Appellant's first four issues are overruled.
Securing The Execution of a Document by Deception
        In his fifth issue, appellant argues the evidence is insufficient to support the SEDD conviction because the State failed to prove that he caused Tyler to execute the lease agreement. A person commits the offense of securing the execution of a document by deception when “with intent to defraud or harm any person, he, by deception . . . causes another to sign or execute any document affecting property or service or the pecuniary interest of any person . . . .” Tex. Penal Code Ann. § 32.46(a)(1).
        Appellant contends he did not cause Tyler to execute the lease because the trial testimony shows it was Tyler who insisted upon the agreement. Appellant further claims the evidence shows he did not want a lease or believed it unnecessary.
        Contrary to appellant's assertions, however, there is no testimony indicating that appellant did not want a lease to be signed. Moreover, the fact that appellant stated he was “busy” in response to Tyler's inquiry about delivery of the lease does not establish appellant did not want a written lease. Instead, it suggests that appellant was slow to follow through on that which he had already promised. Appellant held himself out as having the authority to lease the property. Tyler testified that he signed the lease because of appellant's representations concerning his authority and because he believed appellant's authority was lawful. See Smith v. State, 681 S.W.2d 71, 75-76 (Tex. App.- Houston [14th Dist.] 1983) aff'd, 722 S.W.2d 408 (Tex. Crim. App. 1986) (misrepresentations cause victim to sign contract). Based on the record before us, we conclude a rational jury could find that but for appellant's actions, there would have been no lease. Appellant's fifth issue is overruled.
Enhancement
        In his sixth issue, appellant argues the trial court erred in classifying his prior military conviction as a felony for enhancement purposes. The State responds that the prior conviction was properly categorized as a felony. We agree with the State.        
        Prior to trial, the State filed written notice of its intent to enhance the punishment in the two burglary cases with a prior military conviction. The notice stated that appellant had been convicted, after a court martial, of “larceny of property other than military property of a value of more than $100.” The offense was alleged to have been committed in 1989.
        Appellant pled true to the enhancement.   See Footnote 2  During a pre-trial hearing, the State introduced certified copies of military records showing appellant was convicted of larceny of a stereo valued at $295. Punishment for the offense was assessed at reduction of appellant's rank, nine months confinement, and a bad conduct discharge. The State also introduced the applicable portion of the United States Manual for Courts-Martial, which reflects that in 1989 the maximum punishment for larceny of non-military property valued over $100 was five years in the penitentiary. The evidence further included a copy of the United States Code section which states that any court martial offense with a punishment range of more than a year may be served in any United States penitentiary. See 18 U.S.C. §4083 (West 2000). Over appellant's objection, at the conclusion of the hearing, the trial court admitted the military conviction as a prior felony conviction for enhancement purposes.
        Appellant alleges the trial court should not have allowed the military conviction for larceny of a $295 stereo to enhance his punishment because in 1989 such an offense would have been a misdemeanor offense under Texas law. We reject appellant's argument because it contravenes the unequivocal language of the penal code and the controlling case authority applying the code.
         When a prior conviction was not obtained from a prosecution under the Texas Penal Code, the code classifies such conviction as a “felony of the third degree” if imprisonment in a penitentiary is affixed to the offense as a possible punishment. Tex. Penal Code Ann. §12.41 (West Supp. 2009). Under the penal code, a defendant convicted of a first-degree felony who has been previously convicted of a felony is to be punished by life imprisonment, or any term of imprisonment of not more than 99 years or less than fifteen years and a fine not to exceed $10,000. See Tex. Penal Code Ann. § 12.42(c) (West Supp. 2009). The “punishment to be affixed” is not the actual punishment imposed, but rather the “ordinary punishment specified by the statute defining the offense.” Childress v. State, 784 S.W.2d 361, 363 (Tex. Crim. App. 1990). After the legislature enacted section 12.41, the court of criminal appeals held that a conviction for a federal offense that does not constitute a felony under the Texas Penal Code can be used to enhance punishment under section 12.42. Ex parte Blume, 618 S.W.2d 373, 376 (Tex. Crim. App. 1981). In so holding, the court expressly overruled the old rule requiring that a felony under federal law used to enhance punishment also be categorized as a felony under Texas law. See id.
        Appellant's 1989 military conviction was an offense defined by penal statute outside the penal code. The offense carried imprisonment in the penitentiary as a possible confinement. Therefore, it was a felony under section 12.41, subject to use for §12.42 enhancement purposes. Accordingly, we conclude the felony classification of appellant's prior conviction for enhancement purposes was not error. Appellant's sixth issue is overruled.
        Having resolved all of appellant's issues against him, we affirm the trial court's judgments.
                
                                                          
                                                          MARTIN RICHTER
                                                          JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 47
091315F.U05
 
Footnote 1 The remaining $700 was paid the following day.
Footnote 2 When a defendant pleads “true” to an enhancement paragraph, he cannot complain on appeal that the evidence is insufficient to support the enhancement. Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App. 1981). Here, however, appellant challenges the legal classification of his prior offense-an issue on which he lodged a “vociferous” objection in the court below.