Lisa Wilkes-Richardson v. State of Texas--Appeal from 238th District Court of Midland County

 Opinion filed July 12, 2007

In The

Eleventh Court of Appeals

__________

   No. 11-05-00345-CR

__________

   LISA WILKES-RICHARDSON, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 238th District Court

Midland County, Texas

Trial Court Cause No. CR30007

O P I N I O N

Lisa Wilkes-Richardson was indicted on one count of theft by general deception and four counts of forgery by making a check. The jury convicted appellant of Count I (theft by general deception) and of Counts II and IV (forgery by making a check). The trial court assessed punishment at twelve months confinement in a state jail facility for each offense. We affirm.

In her first issue on appeal, appellant complains that the trial court erred in denying her motion for continuance. Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 2006) allows a criminal action to be continued on the written motion of the State or a defendant upon a showing of sufficient cause. The granting or denying of a motion for continuance is within the sound discretion of the trial court. Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006); Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996); Heiselbetz v. State, 906 S.W.2d 500, 511 12 (Tex. Crim. App. 1995). A defendant must show Aspecific prejudice to his defense@ to establish that the trial court abused its discretion in refusing to grant a continuance. Renteria, 206 S.W.3d at 699.

The cause was set for trial on August 8, 2005. A hearing was held on appellant=s motion for continuance on July 27. At the hearing, appellant stated that she received the State=s first amended witness list on July 18 and the State=s second amended witness list on July 20. Appellant argued that the witness lists included witnesses not previously named and that that was Agoing to change the whole complexion of our case.@ Appellant also argued that the additional witnesses could extend the length of the trial and create a conflict for her expert witness. Appellant sought more time for investigation and preparation for the additional witnesses and also to obtain phone records that could be exculpatory.

The State argued at the hearing that appellant was provided a witness list months before trial and that the amended lists were provided in advance of the ten days prior to trial as required by the trial court. The State also noted that appellant named most of the additional witnesses in her deposition and that the State had given verbal notice of another additional witness well in advance of trial. The State also had an Aopen file@ policy in which appellant could have reviewed information on the additional witnesses.

The trial court noted that appellant should have been aware of the additional witnesses. The trial court further stated that it was Aprepared to take remedial action@ to help appellant prepare for the additional witnesses. The trial court further stated that it would accommodate the schedules of appellant=s witnesses as much as possible.

During trial, appellant conducted a thorough cross-examination of the State=s witnesses, and appellant called an expert witness to testify in her defense. Appellant has not shown a specific prejudice to her defense from the trial court=s denial of her motion for continuance. Appellant=s first issue on appeal is overruled.

In her second issue on appeal, appellant argues that the trial court erred in denying her motion to quash the indictment. Appellant complains that Count I of the indictment is so vague that she did not have notice of the particular offense for which she is charged.

The sufficiency of an indictment is a question of law. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). Therefore, we review a trial court=s ruling on a motion to quash the indictment de novo. Id. at 601. An accused in a criminal case is guaranteed the right to demand the nature and cause of the action against him. DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988). A charging instrument that tracks the language of a criminal statute generally possesses sufficient specificity to provide a defendant with notice of a charged offense. State v. Edmond, 933 S.W.2d 120, 128 (Tex. Crim. App. 1996). A motion to quash an indictment should be granted only when the language regarding the accused=s conduct is so vague or indefinite that it fails to give the accused adequate notice of the acts he allegedly committed. DeVaughn, 749 S.W.2d at 67.

Count I of the indictment alleges that appellant:

[O]n or about the 1st day of January A.D., 2004 to the 6th day of May A.D., 2004 . . . did then and there by deception, unlawfully acquire and exercise control over property, to-wit: money and currency of the United States of America of the total value of fifteen hundred dollars or more but less than twenty thousand dollars without the effective consent of said Thomas R. Minihan, Jr., the owner thereof, and with intent to deprive the said owner of the said property.

Tex. Penal Code Ann. ' 31.03(a) (Vernon Supp. 2006) provides that a person commits theft if he Aunlawfully appropriates property with intent to deprive the owner of property.@ Tex. Penal Code Ann. ' 31.03(b)(1) (Vernon Supp. 2006) states that appropriation of property is unlawful if Ait is without the owner=s effective consent.@

The indictment alleges that appellant committed the offense between the dates of January 1, 2004, and May 6, 2004. Tex. Penal Code Ann. ' 31.09 (Vernon 2003) allows amounts obtained pursuant to one scheme or a continuing course of conduct to be considered as one offense and allows the amounts to be aggregated in determining the grade of the offense. Offenses aggregated pursuant to Section 31.09 need not be alleged as a separate offense. Kellar v. State, 108 S.W.3d 311, 313 (Tex. Crim. App. 2003).

A defendant has a constitutional right to sufficient notice so as to enable him to prepare a defense. Id. However, this due process requirement may be satisfied by means other than the language in the charging instrument. Id. When a motion to quash is overruled, a defendant suffers no harm unless he did not, in fact, receive notice of the State=s theory against which he would have to defend. Id.

At the hearing on the motion to quash, the State noted that appellant had notice of the State=s theory of the case relating to Count I of the indictment Asince day one.@ The State informed the trial court and appellant of the State=s theory concerning Count I and what the State intended to prove. Appellant=s attorney admitted that she had notice of the State=s theory. Appellant has not shown that she did not have adequate notice of the allegations against her in Count I of the indictment. Appellant=s second issue on appeal is overruled.

In her third issue on appeal, appellant contends that the trial court erred in Athe rendition of the written judgments in Counts I, II, & IV.@ The trial court assessed punishment at twelve months confinement in a state jail facility for each offense. During the oral pronouncement of the sentence, the trial court stated that the A[c]ourt retains jurisdiction of this matter under [Tex. Code Crim. Proc. Ann. art. 42.12 (Vernon 2006)] for a period of 90 days from the date of execution of the sentence.@ The written judgments do not state that the trial court would retain jurisdiction over the cause.[1] Appellant argues that the written judgments should be reformed to reflect the trial court=s statement concerning jurisdiction.

Article 42.12, section 15(f)(2) states that the trial court Aretains jurisdiction over the defendant for the period during which the defendant is confined to a state jail.@ Therefore, it was not necessary that the judgments contain a statement that the trial court retained jurisdiction over the matter. Appellant=s third issue on appeal is overruled.

In her fourth issue on appeal, appellant complains that the evidence is legally and factually insufficient to support her conviction. In order to determine if the evidence is legally sufficient, we must review all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11. We review the fact-finder=s weighing of the evidence and cannot substitute our judgment for that of the fact-finder. Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 135. Due deference must be given to the jury=s determination, particularly concerning the weight and credibility of the evidence. Johnson, 23 S.W.3d at 9; Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). This court has the authority to disagree with the fact-finder=s determination Aonly when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.@ Johnson, 23 S.W.3d at 9.

Star Drilling is owned by Thomas Minihan Jr., Jana Rich Garcia, Sherry Minihan, David Minihan, and John Rich. Thomas Minihan Sr. serves as a consultant for Star Drilling and manages the company. Thomas Minihan Sr. owned Minihan Oil & Gas, which was located in the same office building as Star Drilling. Appellant began working for Star Drilling in January 2001 as a bookkeeper. Appellant received a gross salary of $2,225 per month from Star Drilling and $575 per month from Minihan Oil & Gas. Star Drilling paid appellant $1,026.92 biweekly.

Advantage Payroll Services processed the payroll for Star Drilling until January 1, 2004. At that time, appellant began processing the payroll for Star Drilling. Beginning January 2, 2004, appellant began paying herself $1,431.28 biweekly. Appellant overpaid herself approximately $809 per month. Appellant continued to overpay herself each pay period, and she resigned May 6, 2004, after being confronted about the overpayment. The continued overpayment exceeded $1,500.

Appellant testified at trial that Patrick J. Sheehan, a certified public accountant who performed services for Star Drilling, authorized a pay raise for appellant. Appellant stated that she received a raise for the additional responsibility of processing payroll. Sheehan testified that he was not an employee of Star Drilling and that he did not have the authority to give appellant a pay raise. Thomas Minihan Sr. testified that Sheehan was not authorized to give appellant a raise. Thomas Minihan Sr. further testified that he did not authorize a raise for appellant and that appellant was not authorized to give herself a raise.

Count I of the indictment alleged that appellant committed the offense of theft by deception between January 1, 2004, and May 6, 2004. Section 31.09 allows a continuing course of conduct to be considered as one offense and for the amounts to be aggregated. In a case of aggregated theft under Section 31.09, the indictment must allege the Acontinuing course of conduct@ element. Kellar, 108 S.W.3d at 313. A hypothetically correct jury charge in this case would have included the Acontinuing course of conduct@ element required by Section 31.09. Measured against a hypothetically correct jury charge, the evidence was legally and factually sufficient to convict appellant of the offense of theft by deception. Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997).

Jana testified at trial that she and Thomas Minihan Jr. were authorized to sign checks on behalf of Star Drilling. Appellant was not authorized to sign checks on the Star Drilling account. Jana viewed several checks written on the account of Star Drilling at trial that contained her signature. Jana confirmed that the checks had her name on the signature line but stated that the signature was not her signature. Checks Nos. 6529 and 7437 were included in those checks.

Check No. 6529 was made out to appellant and endorsed by appellant. Appellant acknowledged that the check was endorsed by her or by someone on her behalf and that the money was deposited or cashed by her or on her behalf. Mel Francis, a handwriting expert with the Midland Police Department, testified that the signature on Check No. 6529 was not that of Jana Rich. Francis further testified that appellant=s signature was on the endorsement of the check. Francis could not determine whether appellant signed Jana=s name on the signature line of the check.

Appellant took checks to Jana for Jana to sign them. Jana would also sign blank checks for appellant to use for office expenses. Appellant testified that she had access to the checks on the Star Drilling account and that she also had access to the signed blank checks. There was testimony that appellant used company checks to pay her personal bills.

A copy of Check No. 7437 was made out to Cyberlights. The actual Check No. 7437 was made out to appellant and endorsed by appellant. Cristal Lynn Firestone, the owner of Cyberlights, testified that she never received Check No. 7437 from Star Drilling.

Appellant testified at trial that she made out Check No. 7437 for $1,000 to Cyberlights as an advance for work done on the Star Drilling website. Appellant told Firestone to fax an invoice to Star Drilling. Appellant copied the check and gave instructions to another employee to type out the check to Cyberlights when the invoice came. When appellant returned to work, the check was still on her desk. Appellant then used the check to pay herself a $1,000 advance. Appellant testified that Thomas Minihan Sr. approved the advance.

Appellant testified that she wrote in the cash journal that Check No. 7437 was paid to Cyberlights. The general ledger also showed that Check No. 7437 was paid to Cyberlights. Appellant did not correct the ledgers to reflect that the check was paid to her. Thomas Minihan Sr. testified that he did not authorize an advance for appellant on the date Check No. 7437 was written. Firestone also testified that she never told appellant that she needed an advance and that she always bills Star Drilling after completion of the work.

Viewing the evidence in the light most favorable to the verdict, the jury could have found that appellant made or completed a writing purported to be the act of Jana or that appellant passed and transferred Check Nos. 6529 and 7437 with the knowledge that the checks were forged. The evidence supporting the verdict is not so weak that the verdict is clearly wrong and manifestly unjust. Measured against a hypothetically correct jury charge, the evidence was legally and factually sufficient to convict appellant of the offense of forgery by making a check. Malik, 953 S.W.2d at 240. Appellant=s fourth issue on appeal is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

July 12, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]We note that, in its written judgments, the trial court found appellant guilty of forgery by making a check as alleged in Count III of the indictment. The jury acquitted appellant of this offense. The jury convicted appellant of forgery by making a check as alleged in Count II of the indictment. The trial court entered a judgment nunc pro tunc on March 3, 2006, to correct the error.