Anthony Quang Tran v. The State of Texas--Appeal from 177th District Court of Harris County

Affirmed and Memorandum Opinion filed July19, 2007

Affirmed and Memorandum Opinion filed July19, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00261-CR

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ANTHONY QUANG TRAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 1029304

M E M O R A N D U M O P I N I O N

A jury convicted appellant, Anthony Quang Tran, of theft and the trial court sentenced him to twenty-five years= confinement in the Institutional Division of the Texas Department of Criminal Justice. In four issues, appellant argues (1) the evidence is legally and factually insufficient to support a conviction, and (2) he received ineffective assistance of counsel. We affirm.

I. Factual and Procedural Background

On October 29, 2004, appellant, an engineer for a NASA contractor, opened an account in his son=s name at the Johnson Space Center (AJSC@) Credit Union. On the same day, he endorsed and deposited a check made payable to him from Marc USA/Pittsburgh Inc. (AMarc USA@) in the amount of $128,486. In early November, appellant made four cash withdrawals totaling $20,500. On November 8, 2004, appellant executed wire transfers of $45,000 to a bank in Japan and $30,000 to a bank in the Netherlands. Appellant subsequently made another cash withdrawal and another wire transfer to the Netherlands. On November 15, 2004, appellant endorsed and deposited a second check from Marc USA in the amount of $193,758. Appellant subsequently made several cash withdrawals and wire transfers to the banks in Japan and the Netherlands. On December 3, 2004, appellant endorsed and deposited a third check from Marc USA in the amount of $197,337. Three days later he wire transferred $20,000 to Barclays Bank in London. He also withdrew cash and wired $168,000 to the bank in Japan.

On December 17, 2004, appellant endorsed and deposited a check from Sundance Square Management Corp. (ASundance Square@) for $237,653.33. On December 23, 2004, appellant withdrew $5000 in cash and wired $10,000 to Barclays Bank in London. After making this final wire transfer, appellant began calling the JSC Credit Union and requesting that his wire transfers be rescinded. An employee of the credit union testified that during this time period, appellant phoned her ten to twenty times per day requesting that the bank reclaim the transferred funds. On December 24, 2004, the Sundance Square check was returned to the JSC Credit Union because the issuing bank determined it was counterfeit. Debra Reeder, vice-president of accounting at the credit union then reviewed the first three large checks that appellant had deposited and determined that they were also counterfeit. Marc USA did not issue the checks and did not consent to appellant negotiating or possessing the checks.

Secret Service Agent Steve Dudek conducted an investigation into the counterfeit checks. Dudek interviewed appellant, and after waiving his constitutional rights, appellant made a statement to Dudek. In his statement, appellant claimed to have lost almost $200,000 as the victim of a ANigerian 419 scam@ during 2002 and 2003.[1] Appellant said he received an email in 2004 from someone who claimed he could help appellant recoup his losses from the previous scam. Several emails, many from an alleged Nigerian official, Idiata Aigbedion, and an alleged attorney, Francis Ehimen, ensued. According to appellant, at the direction of Aigbedion and Ehimen, he agreed to open a separate account at his credit union.[2] Appellant indicated he only agreed to participate if he did not have to contribute any of his own money. Appellant admitted that he deposited the four checks and made wire transfers to various banks around the world, something he had agreed to do in exchange for a fee. He also made several cash withdrawals. Appellant stated he did not know that the first three checks were counterfeit until he was arrested. When the fourth check did not clear, appellant said, Athe bank caught it this time.@ According to appellant, it was only then that he realized he Ahad made an honest and stupid mistake.@

Appellant was charged by indictment with the felony offense of aggregate theft, committed between October 29, 2004, and December 23, 2004. After entering a plea of not guilty, appellant was convicted by a jury of the charged offense. The trial court sentenced appellant to twenty-five years= confinement in the Texas Department of Criminal Justice, Institutional Division. This appeal timely followed.

II. Sufficiency of the Evidence

In his first two issues, appellant contends the evidence is legally and factually insufficient to support a conviction for theft. Specifically, appellant argues that he was a victim of a second scam and that he did not know the checks he was depositing were counterfeit. Therefore, he had no intent to commit theft.

 A. The evidence is legally sufficient to support appellant=s conviction.

When reviewing the legal sufficiency of the evidence, we do not ask whether we believe that the evidence at trial established guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318B19, 99 S. Ct. 2781, 2789 (1979). Rather, we examine the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Id. 443 U.S. at 319, 99 S. Ct. at 2789; Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995) (en banc).

A person commits theft if he unlawfully appropriates property with intent to deprive the owner of it without the owner=s effective consent. Tex. Penal Code Ann. ' 31.03 (Vernon Supp. 2006). The jury charge in this case included an instruction on the law of parties. A person is criminally responsible as a party to an offense if the offense is committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Id. ' 7.02(a)(2).

In this case, the jury was authorized to convict appellant as a principle if it found that appellant, pursuant to one scheme and continuing course of conduct, appropriated by acquiring and otherwise exercising control over money owned by Debra Reeder and the JSC Credit Union, with the intent to deprive the complainants of the property. The jury was also authorized to convict appellant as a party if it found beyond a reasonable doubt that Idiata Aigbedion or Francis Ehimen unlawfully, pursuant to one scheme and continuing course of conduct, appropriated by acquiring or otherwise exercising control over money owned by Debra Reeder and the JSC Credit Union with the intent to deprive the complainants of the property, and that appellant, with the intent to promote or assist the commission of the offense, solicited, encouraged, directed, aided or attempted to aid Idiata Aigbedion or Francis Ehimen to commit the offense.

In reviewing the evidence to determine whether it is sufficient to support appellant=s conviction as a principle or a party, the crucial issue is intent. Appellant admitted he deposited the checks and that he withdrew cash and executed wire transfers from the account. He argues he had no intent to commit theft because he was a victim of a scam and did not know the checks were counterfeit. Proof of a mental state almost always depends upon circumstantial evidence. Varnes v. State, 63 S.W.3d 824, 833 (Tex. App.CHouston [14th Dist.] 2001, no pet.). To determine culpability for an offense, the jury is entitled to consider events that occurred before, during, and after the commission of the offense. Mouton v. State, 923 S.W.2d 219, 223 (Tex. App.CHouston [14th Dist.] 2001, no pet.); see also Godsey v. State, 719 S.W.2d 578, 581 (Tex. Crim. App. 1986) (en banc).

As part of the investigation, Secret Service agents reviewed email correspondence and other documents found on the hard drive of appellant=s home computer. The record reflects that appellant corresponded via email with Idiata Aigbedion and Francis Ehimen. Over the course of the email correspondence, appellant received wire transfer instructions. On October 8, 2004, prior to receiving the first check, appellant sent an email to Ehimen stating, ALet=s hope this check is for real.@ In a subsequent email correspondence with Aigbedion appellant stated:

Regarding the Western Union, Since the Sept. 11, 2001 terrorist attacked [sic] on the US Soil, the US Justice department had a new Law, the Patriot Act, which was created by the US Congress, It has the legal right to monitor all money transactions in and out of the country, especially from those countries that are listed under Terrorist is [sic] watch. Unfortunately, Nigeria is on that list.

When they see a large sum of cash send [sic] in to Nigeria with no clear business or personal reasons, they can stop it from sending and give it back to the sender. They are not confiscating it, because they are suspicious of the transaction only, if they have considered as some sort of illegal activity, then they will take away the money and conducting a formal investigations, this is how my previous attorney and his Aclowns@ were arrested, last time.

Based on these emails, the jury could have inferred that appellant knew the checks were counterfeit and thus that appellant was not the victim of a scam. Appellant expressed concern that the checks were not Areal@ and discussed with Aigbedon how to avoid regulations intended to discover suspicious transactions.

The record further reflects that appellant made inconsistent statements to credit union employees about the nature of the account he opened in his son=s name. He initially told the credit union that the account was for his son=s college fund, but when Reeder asked where the large checks originated, appellant told her he was attempting to start a business in another country. The email correspondence also revealed that appellant conducted the transactions under the guise of an international business. Further, appellant=s actions prior to the deposit of the last check indicated he was not an innocent victim of a scam. Appellant phoned the credit union ten to twenty times per day attempting to reclaim the money from the wire transfers. The jury could have inferred from this evidence that appellant knew the checks were counterfeit and had reason to believe that the credit union would discover the theft.[3]

Viewing the evidence in the light most favorable to the verdict, we hold that a rational jury could have found the elements of the offense of aggregate theft beyond a reasonable doubt. We overrule appellant=s first issue.

 B. The evidence is factually sufficient to support appellant=s conviction.

In his second issue, appellant contends the evidence is factually insufficient to support his conviction. When reviewing the factual sufficiency of the evidence, we view all the evidence in a neutral light and set aside the verdict Aonly if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.@ Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997) (en banc) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (en banc)). Before we may reverse for factual insufficiency, we must first be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury=s verdict. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). In examining a factual sufficiency challenge, we defer to the factfinder=s determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003) (en banc).

Appellant argues that the documents found on his computer support his contention that he was merely a victim of another Nigerian email scam. Specifically, he points to the email he sent stating, ALet=s hope this check is for real,@ arguing this statement indicates he did not know the checks were counterfeit. Appellant also highlights an email in which he told Ehimen that he appreciates all of Ehimen=s help and hopes his contract money will soon be released. Appellant claims it is clear from those emails that he thought his ANigerian deal was going to go through@ and that he would soon receive funds from Ehimen and Aigbedion. But appellant also stated that he agreed to participate with those who corresponded with him and that he did not care where the money was coming from. He said his only goal was to get some money. Thus, although the jury could have believed from the evidence that appellant was the victim of a second scam, the jury also could have believed that appellant was working with Ehimen and Aigbedion to pass counterfeit checks in an attempt to recoup his lost funds from the first scam.

Reviewing all of the evidence in a neutral light, we cannot say that the verdict is so contrary to the overwhelming weight of the evidence to be clearly wrong or unjust, nor can we say that the great weight and preponderance of the evidence contradicts the verdict. Therefore, we overrule appellant=s second issue.

III. Ineffective Assistance of Counsel

In his third and fourth issues, appellant contends he received ineffective assistance of counsel at trial. We review claims of ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Under the Strickland test, an appellant must prove (1) his trial counsel=s representation was deficient, and (2) the deficient performance was so serious that it deprived the appellant of a fair trial. Id. at 687, 104 S. Ct. at 2064. To establish both prongs, the appellant must prove by a preponderance of the evidence that counsel=s representation fell below the objective standard of prevailing professional norms, and there is a reasonable probability that, but for counsel=s deficiency, the result of the proceeding would have been different. Id. at 690B94, 104 S. Ct. at 2066B68. An appellant=s failure to satisfy one prong makes it unnecessary for a court to consider the other prong. Id. at 697, 104 S. Ct. at 2069. This test is applied to claims arising under the Texas Constitution as well as those arising under the United States Constitution. Hernandez v. State, 726 S.W.2d 53, 56B57 (Tex. Crim. App. 1986) (en banc).

Our review of defense counsel=s performance is highly deferential, beginning with the strong presumption that the attorney=s actions were reasonably professional and were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc). When the record is silent as to trial counsel=s strategy, we will not conclude that defense counsel=s assistance was ineffective unless the challenged conduct was A>so outrageous that no competent attorney would have engaged in it.=@ Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

 A. Trial counsel=s use of documents in evidence

In his third issue, appellant contends his trial counsel failed to use documents that were in evidence to show that appellant was being manipulated and duped by the perpetrators of the Nigerian 419 scam. Specifically, appellant refers to State=s exhibit 16-D, which was a compilation of the documents printed from appellant=s computer. Those documents contained email correspondence to and from Ehimen and Aigbedion about the checks to be deposited and the nature of the wire transactions. As discussed more fully above, the documents found on appellant=s computer were not entirely exculpatory. State=s exhibit 16-D was admitted into evidence and certain email correspondence was read to the jury from the exhibit. Kevin Levy, the Secret Service agent who retrieved the documents from appellant=s computer, read the email in which appellant questioned the procedure for wiring money to Nigeria in view of the regulations imposed as a result of the September 11, 2001 terrorist attacks. On cross-examination, appellant=s counsel requested that Levy read the entire email, which supported appellant=s theory that he thought he was engaged in a business transaction with Ehimen and Aigbedion.

Counsel=s reasons for failing to highlight more of the documents retrieved from appellant=s computer do not appear in the record, and her conduct could have been part of a reasonable trial strategy. In addition, the record reflects that trial counsel vigorously pursued a strategy of attempting to show that appellant was again being victimized by the Nigerian scam. The fact that other counsel might have pursued a different strategy does not show ineffective representation. Gholson v. State, 5 S.W.3d 266, 273 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d). We overrule appellant=s third issue.

 B. Trial counsel=s failure to object

In his fourth issue, appellant argues his counsel rendered ineffective assistance in failing to timely object to evidence of altered driver=s licenses found on appellant=s computer. Appellant argues that if his trial counsel had timely objected to the admission of the altered drivers= licenses, the trial court would have excluded them as extraneous offenses. To argue successfully that his trial counsel=s alleged failure to object amounted to ineffective assistance, appellant must show that the trial court would have erred in overruling the attorney=s objection to the testimony. Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996) (en banc) (per curiam).

Here, while cross-examining Agent Dudek, appellant=s counsel asked, ADo you have any personal knowledge of what was found on the computer?@ Dudek responded, AWell, what I found is that there was certain e-mail correspondences B excuse me, we found paper material in the room, and we also found indications of driver=s licenses that were altered. We also found drivers= licenses that contained other people=s photographs. . . .@ (emphasis added). On re-direct, the prosecutor approached the bench, and, outside the presence of the jury, sought to introduce State=s Exhibit 16-C, which consisted of the documents scanned from appellant=s computer. The prosecutor claimed appellant opened the door to the evidence including evidence of the altered drivers= licenses. At that time, appellant=s counsel objected to the admission of the altered drivers= licenses because they were evidence of an extraneous offense. The trial court admitted the evidence because appellant had Aopened the door@ on cross-examination.

As is made clear by the record, appellant=s trial counsel did not fail to timely object to the introduction of this evidence. Instead, her objection was overruled because the trial court concluded she had Aopened the door@ on cross-examination. Appellant presents no argument that his trial counsel was ineffective by opening the door to such evidence. Instead, appellant focuses his argument on establishing that an objection to the altered driver=s licenses themselves would have been sustained because these licenses were evidence of extraneous offenses excluded by the Rules of Evidence. But he does not identify any basis upon which an objection to Dudek=s testimony that opened the door to their introduction could have been made, nor does he explain why any such objection to this testimony would have been sustained. Under these circumstances, appellant has not demonstrated ineffective assistance, and his fourth issue is overruled.

Iv. Conclusion

Having overruled each of appellant=s issues, the judgment of the trial court is affirmed.

/s/ Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed July 19, 2007.

Panel consists of Justices Frost, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] The number 419 refers to the fraud section of the Nigerian Penal Code. The ANigerian 419 scam@ takes many forms, but the most prevalent scheme occurs when an individual receives an email from someone claiming to be a Nigerian official, businessperson, or surviving spouse of a former government official. This person claims to have a large sum of money he needs to move out of Nigeria and to be looking for someone to help him/her do that for a commission. If the individual responds to the initial offer, he may receive documents that appear Aofficial,@and is typically asked to provide blank letterhead and bank account numbers as well as funds to cover the transaction and attorney=s fees. Invariably, problems arise and the Nigerian official or businessperson needs more money. By the time the target of the scam realizes that he will never see any money, he usually has lost a substantial amount of money.

[2] Appellant stated he opened this account in his son=s name because the credit union would not permit him to open more than one account in his own name and he did not want his wife to learn of the additional account.

[3] At the conclusion of his legal sufficiency challenge, appellant contends that, even if there is sufficient evidence to support the jury=s verdict as to the first check in the amount of $128,486, there is insufficient evidence to support a conviction for aggregate theft over $200,000 because there is insufficient evidence of intent regarding the other three checks. But appellant=s intent to commit theft by depositing counterfeit checks is not altered by the fact that the bank did not identify the first check as counterfeit, as appellant claims. Indeed, appellant stated in reference to the fourth check,Athe bank caught it this time,@ a statement from which the jury could have inferred that appellant was aware that the bank had not caught the counterfeit checks the previous three times he deposited them into the account.