WILLIAM MICHAEL HUETT, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed June 9, 1998
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-95-00964-CR
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WILLIAM MICHAEL HUETT, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F95-00362-HU
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O P I N I O N
Before Justices Ovard, Maloney, and Bridges
Opinion By Justice Bridges
        William Michael Huett appeals his conviction for violating the Texas Securities Act. After appellant pleaded not guilty, the jury found him guilty and assessed punishment at ten years and seventy-seven days' confinement and a $10,000 fine. In five points of error, appellant contends the trial court erred in (1) granting the State's motion to amend the indictment, (2) denying his motion to quash the indictment, (3) excluding certain evidence at trial, and (4) limiting his voir dire of a potential juror and subsequently denying his request for an additional peremptory strike. In an additional ten points of error, appellant contends (1) the evidence is legally and factually insufficient to support his conviction, (2) a fatal variance existed between the allegations in the indictment and the proof offered at trial, and (3) he was denied the effective assistance of counsel at trial. For the reasons set forth below, we affirm the trial court's judgment.
BACKGROUND
        In October 1993, appellant was the chief executive officer of Offshore Resources Corporation (ORC), a company involved in the oil and gas business. At the time, ORC was attempting to raise money to purchase the drilling rights to a 30,000 acre tract of land in Frio County, Texas known as the North Schattel Project. FN:1 As part of that effort, appellant contacted Harry Simon. According to Simon, he and appellant were originally introduced by Nick Khan, a man with whom Simon had previously made investments. After Khan initially contacted Simon in September 1994, Simon received a packet of information from ORC. According to Simon, the packet contained a significant amount of information indicating ORC was a legitimate company and was in fact "a very substantial successful operator" in the oil exploration business.
        Among the documents included in the packet was a memorandum indicating that, in exchange for a $75,000 "loan," an investor would receive "one percent of [ORC's] 20 percent carried working interest to the tanks in the North Schattel #2 well, Pearsall Field, Frio County, Texas." FN:2 A few days after receiving the packet, Simon spoke to appellant on the telephone. During that conversation, appellant offered to "throw in" (in addition to the assignment of the carried working interest) 5,000 shares of ORC stock in exchange for Simon's $75,000 "loan." According to Simon, he believed at that time that his investment would be used to help purchase the option to drill on the 30,000 acre tract. Within a week of receiving ORC's information packet, Simon sent appellant a check for $7500. Shortly thereafter, Simon sent a second check for the remaining $67,500.
        Chilo Rivera testified he is an investigator with the Texas State Securities Board and that, as part of his employment, he was asked to trace what happened to Simon's $75,000. After reviewing ORC's bank records, Rivera determined that the majority of the money was spent on luxury automobiles and personal expenses. In addition, Rivera testified that none of the funds spent were "in any way conceivably . . . related to the acquisition of oil and gas leases." Mona Lisa Camarillo, an ORC employee from April 1994 through September 1994, confirmed much of Rivera's testimony, noting that when she worked for ORC, she noticed investors' funds (1) would disappear rapidly from company accounts, and (2) were not being used to "make acquisitions" as the investors were told. FN:3 Camarillo became concerned about appellant's use of investor funds and, because of these concerns, she ultimately terminated her employment with ORC.
        At some point after sending the $75,000 to ORC, Simon was contacted by the state securities board. At that time, Simon learned appellant had a prior criminal history, including two previous security fraud convictions, a theft conviction, and some pending state securities fraud charges. At trial, Simon testified (1) appellant never told him about his prior criminal history prior to Simon's investment; FN:4 and (2) if he had known this information, he would have not have invested his money with appellant. In addition, Simon testified he would not have invested money in the project if he had known appellant would use the funds to purchase luxury automobiles, clothing, and other personal items rather than drilling rights.
        In February 1995, the grand jury indicted appellant for violating the state securities act. In particular, the indictment alleged that, in connection with the offer for sale and sale of a security (specifically, a working interest in the North Schattel #2 oil and gas well in Frio County, Texas and an investment contract), appellant engaged in fraud by (1) intentionally misrepresenting to Simon that his funds would be used for research and development, and (2) failing to disclose his prior criminal history. Appellant ultimately pleaded not guilty to the charged offense and demanded a jury trial. After hearing from nineteen witnesses, including appellant, the jury found appellant guilty of the offense charged. Thereafter, the jury assessed punishment. This appeal followed.
SUFFICIENCY OF THE EVIDENCE
        In his third, fourth, fifth, sixth, seventh, eighth, ninth, and tenth points of error, appellant contends the evidence is legally and factually insufficient to support his conviction. Under these points, appellant contends we must reverse his conviction because the State presented no evidence or, alternatively, insufficient evidence to prove appellant (1) sold or offered to sell Simon a working interest in an oil and gas well or an investment contract, (2) engaged in fraud in the sale of a security, or (3) misrepresented that Simon's funds would be used for research and development. After reviewing the record in this cause, we cannot agree with appellant.
        When reviewing a challenge to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict. Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App.), cert. denied, 502 U.S. 870 (1991); Flournoy v. State, 668 S.W.2d 380, 383 (Tex. Crim. App. 1984). We determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Chambers v. State, 866 S.W.2d 9, 15 (Tex. Crim. App. 1993), cert. denied, 511 U.S. 1100 (1994). This standard leaves to the jury, as factfinder, the responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. See Dumas v. State, 812 S.W.2d 611, 615 (Tex. App.--Dallas 1991, pet. ref'd). The jury is the exclusive judge of the witnesses' credibility and the weight to be given their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865 (1985); Dumas, 812 S.W.2d at 615. Thus, the jury is free to accept or reject any or all of the evidence presented by either side. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).
        By contrast, in conducting a factual sufficiency review, we examine the jury's weighing of the evidence. See Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). In so doing, we view all the evidence without the prism of "in the light most favorable to the prosecution." See id. at 134. Nevertheless, we must appropriately defer to the jury's findings so as to avoid substituting our judgment for that of the jury. See id. at 133, 135. The purpose of our review is only to prevent a manifestly unjust result, and we are not free to set aside a jury's determination merely because we feel a different result is more reasonable. See id. at 135. We will reverse a case for factual insufficiency only if the jury's determination "is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust." See id.
        Under the penal provisions of the state securities act, a person commits an offense if, in connection with the sale or offer for sale of a security, he directly or indirectly engages in any fraud or fraudulent practice. See Act of May 23, 1991, 72d Leg., R.S., ch. 565, § 9, 1991 Tex. Gen. Laws 2003, 2005-06, amended by Act of May 15, 1995, 74th Leg., R.S., ch. 228, § 16, 1995 Tex. Gen. Laws 1983, 1997 (current version at Tex. Rev. Civ. Stat. Ann. art. 581-29(C)(1) (Vernon Supp. 1998)). The act defines "security" to include both an "investment contract" and "any instrument representing any interest in or under an oil, gas or mining lease." Act of May 31, 1993, 73d Leg., R.S. ch. 917, § 3, 1993 Tex. Gen. Laws 3887, 3913, amended by Act of May 15, 1995, 74th leg., R.S., ch. 228, § 3, 1995 Tex. Gen. Laws 1983, 1983 (current version at Tex. Rev. Civ. Stat. Ann. art. 581-4(A) (Vernon Supp. 1998)). In addition, the act defines the terms "fraud" and "fraudulent practice" as "any misrepresentation[] . . . of a relevant fact . . . or an intentional failure to disclose a material fact." Tex. Rev. Civ. Stat. Ann. art. 581-4(F) (Vernon 1964).
        In this case, appellant was charged by indictment with violating the state securities act. At the close of evidence, the trial court charged the jury that it could find appellant guilty if it found, beyond a reasonable doubt, that appellant, "in connection with the sale or offer for sale to Harry D. Simon of a security, to-wit: A working interest in the North Schattel #2 oil and gas well in Frio County, Texas or an investment contract issued by Offshore Resources Corporation," did directly or indirectly engage in fraud by (1) intentionally misrepresenting to Simon that Simon's funds would be used for research and development and "said misrepresentation was of a relevant fact," or (2) intentionally failing to disclose to Simon that appellant had a prior criminal history and that "said information was a material fact." FN:5 In eight points of error, appellant challenges the sufficiency of the evidence to support the jury's findings on these points. We will address each of appellant's arguments in turn.
Nature of Transaction
        In appellant's fourth and eighth points of error, he contends the evidence is legally and factually insufficient to show the transaction in this case involved a security. According to appellant, the evidence presented at trial showed the transaction between appellant and Simon to be a loan, evidenced by a non-negotiable promissory note, and not a security as that term is defined under the statute. Because there was no evidence or, alternatively, insufficient evidence to show appellant sold a security, appellant contends we must reverse his conviction. We disagree.
        The securities act defines the term "security" to include an "instrument representing any interest in or under an oil, gas or mining lease." Act of May 31, 1993, 73d Leg., R.S. ch. 917, § 3, 1993 Tex. Gen. Laws 3887, 3913 (amended 1995). In determining whether a particular transaction constitutes a security under the act, we look to the substance of the transaction rather than its form and, in so doing, examine all the surrounding circumstances. See Bruner v. State, 463 S.W.2d 205, 214 (Tex. Crim. App. 1970). Texas courts have routinely held that the assignment of an interest in an oil and gas lease is a security for purposes of the state securities act. See, e.g., Kadane v. Clark, 135 Tex. 496, 143 S.W.2d 197, 200 (1940); Muse v. State, 137 Tex. Crim. 622, 132 S.W.2d 596, 597 (1939); Anderson v. Vinson Exploration, Inc., 832 S.W.2d 657, 662 (Tex. App.--El Paso 1992, writ denied); Manley v. State, 774 S.W.2d 334, 335 (Tex. App.--Austin 1989, pet. ref'd).
        Here, the State presented some evidence showing the transaction between appellant and Simon involved a security. Among the documents introduced into evidence is a document entitled "Assignment of Working Interest." That document, which was signed by appellant as chief executive officer of ORC, states that ORC is conveying to Simon one percent of its twenty percent carried working interest to the tanks in a lease described in a document attached thereto. As noted above, the term security includes any instrument representing an interest in or under an oil, gas, or mining lease. See Act of May 31, 1993, 73d Leg., R.S., ch. 917, § 3, 1993 Tex. Gen. Laws 3887, 3913 (amended 1995). Based on the language in the assignment, we conclude any rational jury could have found that the transaction between appellant and Simon fell within the statutory definition of security.
        In addition, we note that a number of witnesses testified at trial that the transaction involved an interest in an oil and gas lease and, thus, a security under the act. Among those witnesses was David Grauer, director of the enforcement division of the state securities board. Grauer was offered and accepted by the court as an expert on securities law. Grauer listened to the evidence presented by the State and, based on that evidence, concluded the transaction between appellant and Simon involved a security of at least two kinds: (1) an investment contract; and (2) a working interest in an oil and gas well. Likewise, John Fahy, a defense witness, testified the transaction between appellant and Simon could be characterized as a note, an investment contract, and a working interest. As Fahy explained, the "note" in this case included within its "four corners" an item (i.e., an assignment of a carried working interest) that is included within the statutory definition of security. We have reviewed this evidence and, after doing so, we conclude it presents some evidence indicating that the transaction between appellant and Simon involved the sale of a working interest in an oil and gas well and, thus, a security under the act. Accordingly, we conclude the evidence is legally sufficient to support the jury's finding.
        We likewise conclude, after reviewing all the evidence presented at trial, that the jury's finding was not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Although a number of witnesses characterized the transaction between appellant and Simon as a "loan" and one of the documents evidencing the parties' transaction is titled "non-negotiable promissory note," other evidence showed the transaction to be an assignment of an interest in an oil and gas lease and, thus, a security under the act. We may not substitute our judgment for that of the jury. See Clewis, 922 S.W.2d at 133, 135. Accordingly, we conclude the evidence is factually sufficient to support the jury's finding that the transaction in question involved a security. We overrule appellant's fourth and eighth points of error.
        Our disposition of these points of error makes it unnecessary for us to consider the arguments in appellant's third, seventh, and eleventh points of error. Tex. R. App. P. 47.1. FN:6
Sale or Offer for Sale
        In appellant's sixth and tenth points of error, he contends the evidence is legally and factually insufficient to prove appellant sold or offered to sell a working interest in an oil and gas well. According to appellant, the evidence adduced at trial showed only that the oil and gas interest was "assigned" and an assignment does not constitute the "disposition of a security for value" as required by the act. Because an assignment fails to satisfy the statutory definition of "sale," appellant contends there is no evidence or, alternatively, insufficient evidence to support his conviction. We disagree.
        The act defines the term sale to include "every disposition, or attempt to dispose[,] of a security for value." Tex. Rev. Civ. Stat. Ann. art. 581-4(E) (Vernon Supp. 1998). This definition includes any agreement whereby a security is "sold, traded[,] or exchanged for money" as well as any transfer or agreement to transfer. Id. In Anderson, the El Paso Court of Appeals held that an assignment of an interest in an oil and gas lease is a "security" for purposes of article 581-4(A) of the state securities act. See Anderson, 832 S.W.2d at 662. In that case, the appellees conveyed their interests in an oil and gas lease to appellants by assignment. Through that assignment, the appellants obtained a working interest in the lease. The El Paso court concluded that (1) these facts presented some evidence that a sale of a security had occurred for purposes of the securities act, and (2) directing a verdict on the appellants' securities act claims was therefore improper. Id. at 662-663; see also Dunbar v. RKG Eng'g, Inc., 746 S.W.2d 314, 315 (Tex. App.--Texarkana 1988, no writ) (recognizing that assignment of portion of interest in oil and gas lease constitutes sale of security under act).
        The facts in this case are nearly identical to the facts in Anderson. Here, the evidence shows ORC assigned a portion of its carried working interest in the North Schattel #2 well to Simon. The assignment specifically states that ORC "grant[s], sell[s], transfer[s] and convey[s]" one percent of its twenty percent carried working interest to Simon. Appellant executed the assignment as chief executive officer of ORC and, according to the evidence presented at trial, the assignment was made in exchange for Simon transferring $75,000 to ORC. As a result of the assignment, Simon obtained one percent of a twenty percent carried working interest to the tanks in the North Schattel #2 well.
        The language of the assignment clearly indicates appellant was selling or transferring a portion of ORC's carried working interest to Simon. FN:7 This transaction without question involves an interest in an oil and gas lease, and we conclude, as did the court in Anderson, that the assignment of this interest constitutes a "sale" under the securities act. FN:8 Although appellant contends the assignment was merely "collateral" for a "loan" of $75,000, the language of the assignment indicates otherwise. FN:9 The jury was entitled to believe the language in the assignment and disbelieve appellant's testimony, and we may not substitute our judgment for that of the jury. See Clewis, 922 S.W.2d at 133, 135. Because we conclude (1) there is some evidence from which a rational jury could find beyond a reasonable doubt that appellant sold or offered to sell a working interest in an oil and gas lease, and (2) that finding is not against the great weight of the evidence presented at trial, we conclude the evidence is both legally and factually sufficient to support the jury's finding. We overrule appellant's sixth and tenth points of error.
Misrepresentation Regarding Use of Simon's Funds
        In his fifth and ninth points of error, appellant contends the evidence is legally and factually insufficient to show he intentionally misrepresented to Simon that Simon's funds would be used for research and development. We conclude we need not address this point because, even assuming appellant's contentions are correct, the jury would still have been authorized to convict appellant for failing to disclose his prior criminal history.
        As noted above, the trial court's charge authorized the jury to convict appellant if it found either that appellant intentionally misrepresented that Simon's funds would be used for research and development or that appellant intentionally failed to disclose his prior criminal history to Simon. In this appeal, appellant has not challenged the sufficiency of the evidence to support a finding that appellant intentionally failed to disclose his prior criminal history. Because the court's charge authorized conviction based on a failure to disclose the prior criminal history and appellant has not challenged this point on appeal, we conclude our disposition of appellant's fifth and ninth points of error would have no effect on appellant's conviction. FN:10 Accordingly, we need not address these points. See Tex. R. App. P. 47.1.
AMENDMENT OF INDICTMENT
        In his first point of error, appellant contends the trial court erred in granting the State's motion to amend the indictment. According to appellant, granting the amendment was improper because it resulted in appellant being charged with a "new, different, or additional charge" which prejudiced his substantial rights. After reviewing the record in this case, we cannot agree.
        Although article 28.10(c) of the code of criminal procedure prohibits a trial court from amending an indictment over a defendant's objection when the amendment would charge the defendant with an additional or different offense or prejudice the defendant's substantial rights, see Tex. Code Crim. Proc. Ann. art. 28.10(c) (Vernon 1989), the court of criminal appeals has held that, for purposes of article 28.10(c), a different offense means a different statutory offense. See Flowers v. State, 815 S.W.2d 724, 728 (Tex. Crim. App. 1991) (per curiam); see also Bynum v. State, 874 S.W.2d 903, 906 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd). Thus, for the amended indictment in this case to violate article 28.10(c), the amendment had to charge appellant with a statutory offense different than that charged in the original indictment.
        Here, the original indictment charged appellant with engaging in fraud in connection with the sale of a security. The indictment defined security as "an instrument representing a working interest in the proposed North Schattel #2 oil and gas well in Frio County, Texas, as evidenced by a document styled `Non-Negotiable Promissory Note' issued by Offshore Resources Corporation dated September 12, 1994." The amended indictment again charged appellant with fraud in connection with the sale of a security; however, this time, the indictment defined security to include not only a working interest in the North Schattel #2 well, but also "an investment contract issued by Offshore Resources Corporation."
        Although appellant contends this amendment effectively charged him with a different offense because, under the rules of "disjunctive pleading," the amendment allowed the State to convict him based solely on proof of an investment contract, we cannot agree. As noted above, for purposes of article 28.10(c), a "different" offense means a different statutory offense. See Flowers, 815 S.W.2d at 728. Here, appellant was charged under both indictments with violating the state securities act by committing fraud in the sale of a security; he was not, contrary to appellant's contentions, charged with different statutory offenses. See id. (noting that change in element of offense changes evidence required to prove offense, but still involves same offense). Thus, the trial court did not violate article 28.10(c) by allowing the amendment.         
        We likewise reject appellant's argument that the amendment violated article 28.10(c) because it effectively charged him with an additional offense. In this case, the amendment did nothing more than charge appellant with committing the same offense in two different ways. It did not, as appellant suggests, charge any offense in addition to the one charged in the original indictment. Because the amendment in this case did not charge a different or additional offense for purposes of article 28.10(c), we conclude the trial court did not err in allowing the amendment. FN:11 We overrule appellant's first point of error.
MOTION TO QUASH
        In his second point of error, appellant contends the trial court erred in denying his motion to quash the indictment. Under this point, appellant contends the indictment should have been quashed because it "failed to set forth with particularity the substance and tenor of the [term] `investment contract' and thus failed to give [appellant] adequate notice of the charge against him." We disagree.
        As a general rule, a motion to quash should be granted if the facts sought by the defendant are essential to giving notice. See Thomas v. State, 621 S.W.2d 158, 161 (Tex. Crim. App. 1981) (op. on reh'g). However, unless a fact is essential, the indictment need not plead evidence relied on by the State. Id. (noting that State is not required to plead absolute factual allegations). An indictment is sufficient when it alleges the offense in ordinary and concise language and with a degree of certainty sufficient to give the defendant notice of the particular offense charged. Id.; Shappley v. State, 520 S.W.2d 766, 770-71 (Tex. Crim. App. 1974). Thus, under Texas law, a motion to quash will only be granted when the language concerning the defendant's conduct is so vague or indefinite as to deny the defendant effective notice of the acts with which he is charged. Thomas, 621 S.W.2d at 163.
        In this case, appellant's motion to quash challenged the indictment for failing to define the term "investment contract." We cannot agree with appellant that this failure rendered the indictment defective. The indictment in this case notified appellant he was charged with engaging in fraud in connection with the sale of a security to Simon in September 1994 in an amount in excess of $10,000. The indictment further notified appellant that the "security" at issue was a working interest in the North Schattel #2 well and an investment contract issued by ORC. This indictment tracked the language of the statute, and we conclude its description was adequate to apprise appellant of the nature of the charge against him. See, e.g., Shappley, 520 S.W.2d at 770-71 (concluding that entire transaction with complainant was sufficiently identified to give defendant fair notice of charged offense); Morgan v. State, 644 S.W.2d 766, 772 (Tex. App.--Dallas 1982, no pet.) (same). Any further definition of the term "investment contract" would have been evidentiary and, accordingly, was not required. See Phillips v. State, 597 S.W.2d 929, 935 (Tex. Crim. App. [Panel Op.] 1980). Under these circumstances, we conclude the trial court did not err in denying appellant's motion to quash. We overrule appellant's second point of error.
ADMISSION OF VIDEOTAPE
        In his twelfth point of error, appellant contends the trial court erred in refusing to admit certain videotapes offered at trial. We conclude we need not address this contention because the point is inadequately briefed. Rule 38.1(h) of the rules of appellate procedure requires the appellant's brief to contain a clear and concise argument with appropriate citations to authority and to the record. See Tex. R. App. P. 38.1(h). Failure to cite authority waives any error on appeal. See State v. Gonzalez, 820 S.W.2d 9, 12 (Tex. App.--Dallas 1991) (interpreting former appellate rule 74(f)), aff'd, 855 S.W.2d 692, 697 (Tex. Crim. App. 1993). In this case, appellant has not cited any authority in support of his twelfth point of error. Accordingly, we conclude nothing is presented for our review. We overrule appellant's twelfth point of error.
ADMISSION OF INTENT EVIDENCE
        In his thirteenth point of error, appellant contends the trial court erred in not allowing him to testify about the reasons he failed to disclose his prior criminal history to Simon. According to appellant, this testimony was relevant and admissible to show why the failure to disclose in this case was not "material." Because the trial court refused to admit appellant's testimony before the jury, appellant contends we must reverse his conviction. We disagree.
        Determining whether to admit or exclude evidence is a matter falling within the trial court's sound discretion. See Williams v. State, 535 S.W.2d 637, 639-40 (Tex. Crim. App. 1976); Stewart v. State, 927 S.W.2d 205, 206 (Tex. App.--Fort Worth 1996, pet. ref'd). We do not disturb a trial court's ruling on the admissibility of evidence absent an abuse of discretion. See Williams, 535 S.W.2d at 639-40; Stewart, 927 S.W.2d at 206. A trial court abuses its discretion only when it acts arbitrarily or unreasonably or without reference to any guiding rules or principles. See Florez v. State, 936 S.W.2d 681, 682 (Tex. App.--Dallas 1996, pet. ref'd).
        Under the state securities act, a fact is "material" if "there is a substantial likelihood that [the fact] would have assumed actual significance in the deliberations of a reasonable investor, in that it would have been viewed by the reasonable investor as significantly altering the total mix of available information used in deciding whether to invest." See Bridwell v. State, 804 S.W.2d 900, 904 (Tex. Crim. App. 1991); see also Huett v. State, 672 S.W.2d 533, 540 (Tex. App.--Dallas 1984, pet. ref'd). The focus of the inquiry is on the importance of a particular nondisclosure to the reasonable investor. See Bridwell, 804 S.W.2d at 903 & n.6. In this case, appellant sought to testify about (1) the reasons he did not disclose his prior criminal history, and (2) why he did not consider his prior criminal history "material"; however, appellant's beliefs about the materiality of his prior history and his reasons for not disclosing it are not relevant to the determination of materiality (i.e., whether the information would have been important to a reasonable investor). Because the excluded testimony was not relevant to the "materiality" determination, we conclude the trial court did not abuse its discretion in excluding the testimony at trial. We overrule appellant's thirteenth point of error.
INEFFECTIVE ASSISTANCE OF COUNSEL
        In his fourteenth point of error, appellant contends he was denied the effective assistance of counsel at trial. We disagree. The Sixth Amendment to the United States Constitution and article one, section ten of the Texas Constitution guarantee the right to effective assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10. In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set out a two-prong test for analyzing ineffectiveness claims at the guilt/innocence stage of trial. Under that test, a defendant must establish (1) his counsel's performance was deficient, and (2) the deficiency prejudiced his defense. Strickland, 466 U.S. at 687. The Texas Court of Criminal Appeals has adopted the same test for analyzing claims of ineffectiveness under the Texas Constitution. See Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986).
        In this case, appellant identifies four specific "deficiencies" that he claims denied him the right to a fair trial; however, three of the deficiencies complain only of actions taken by the trial court, not counsel. FN:12 Because these actions do not address the propriety of counsel's conduct at trial, we conclude (1) they are not properly a part of appellant's ineffectiveness complaint, and (2) we need not address them. We turn instead to appellant's complaint that counsel acted deficiently by not filing a motion to recuse the trial judge in this case.
        Under this argument, appellant contends counsel should have sought the trial judge's recusal because the trial judge "had prior knowledge of appellant" resulting from the trial judge having authored an opinion in one of appellant's prior appeals. According to appellant, the failure to file a motion to recuse prejudiced his defense and requires a reversal in this case. We cannot agree. Contrary to appellant's contentions, the trial judge in this case was not the author of the opinion in appellant's previous appeal. See Huett, 672 S.W.2d at 534. Nor was the trial judge on the panel that heard the appeal in that case. Id. Additionally, the record does not contain any evidence showing the trial judge had any "prior knowledge of appellant." Accordingly, we cannot conclude counsel acted deficiently by not filing a motion to recuse in this case. Appellant has not proven his ineffectiveness claim by a preponderance of the evidence. We overrule appellant's fourteenth point of error.
VOIR DIRE
        In his fifteenth point of error, appellant contends the trial court erred in limiting his questioning of a potential juror, Rosemary Petty, and subsequently refusing his request for an additional peremptory strike. After reviewing the record in this case, we cannot agree.
        During voir dire, the court questioned Petty individually about her ability to consider the full range of punishment. Although Petty initially indicated she might have a problem considering the full range, she ultimately agreed that she could. Following that discussion, Petty indicated she had some personal experience with situations involving "financial fraud." At that point, the court asked Petty whether she could "put aside" any personal experiences she may have had and decide the case on the facts presented in the courtroom; Petty assured the court that she could. Thereafter, defense counsel sought to question Petty more extensively about her knowledge and past experiences with fraud. The trial court refused to allow any further questioning and subsequently denied defense counsel's request for an "additional strike."
        In his fifteenth point of error, appellant initially contends his conviction must be reversed because the trial court improperly limited his questioning of Petty. According to appellant, he had the right to question Petty further about her potential bias and the court's failure to allow the questioning requires reversal. We disagree. The conduct of voir dire rests largely within the trial court's sound discretion and, although the right to propound questions on voir dire is "of the greatest importance," we only reverse a trial court's decision to restrict voir dire questions when the defendant establishes that the ruling prejudiced or injured him. See Cantu v. State, 842 S.W.2d 667, 687 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 926 (1993); Burkett v. State, 516 S.W.2d 147, 148-50 (Tex. Crim. App. 1974). Here, appellant has not shown how the failure to allow further questioning prejudiced or harmed him. Additionally, we note that, during voir dire, Petty told the trial court that she could set aside any personal experiences she had with "financial fraud" and decide the case based solely on the facts presented in the courtroom. We conclude, based on this statement as well as the record as a whole, that appellant has not shown any prejudice or harm resulting from the trial court's ruling. Accordingly, he is not entitled to a reversal on this point. See Burkett, 516 S.W.2d at 148-50.
        We reach a similar conclusion with respect to appellant's argument that the trial court erred in denying him an additional peremptory strike. FN:13 The record in this case does not contain a copy of the parties' strike lists. Thus, it does not indicate either that appellant (1) ultimately exhausted all of his peremptory strikes, or (2) needed additional strikes to remove an objectionable juror from the panel. Without this information, we are unable to determine whether appellant was harmed by the court's refusal to grant additional strikes. See, e.g., Anson v. State, 959 S.W.2d 203, 208 (Tex. Crim. App. 1997) (Meyers, J., concurring) (recognizing that "it appears to have been the law for a very long time that harm is assessed in the jury selection process by considering the subsequent utilization of peremptory strikes and whether the defendant ultimately was forced to have an objectionable juror sit"); Janecka v. State, 937 S.W.2d 456, 470-71 (Tex. Crim. App. 1996) (recognizing that failure to exhaust peremptory strikes can negate harmfulness of error associated with court's limitation of voir dire questioning), cert. denied, 118 S. Ct. 86 (1997). Under these circumstances, we conclude no reversal is warranted. FN:14 We overrule appellant's fifteenth point of error.
        We affirm the trial court's judgment.
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
 
 
 
 
Do Not Publish
Tex. R. App. P. 47
950964F.U05
950964F.U05
 
FN:1 At the time, ORC owned the drilling rights to a small portion of land in this tract, totalling about 340 acres.
FN:2 According to his testimony, Simon was also told he would be repaid the full $75,000 plus ten percent interest within one year. At trial, Simon conceded, however, that the documents he received from ORC did not reference this agreement.
FN:3 As an example, Camarillo testified that appellant and his wife purchased three luxury automobiles shortly after Simon's funds were received by the company.
FN:4 On cross-examination, Simon admitted appellant might have told him he had been to prison and that he had some type of securities problem pending, but this appears to have been after Simon sent the $75,000 to appellant. According to Simon's testimony, he first learned of appellant's prior criminal history when he was contacted by the state securities board.
FN:5 The charge lists two prior securities fraud convictions, two prior theft convictions, and three pending securities fraud charges. However, these convictions/charges are all listed in the disjunctive; therefore, proof of a failure to disclose any one of the convictions or charges (along with a showing of materiality) would have been sufficient to justify a conviction in this case. In addition, the charge authorized conviction if appellant intentionally failed to disclose to Simon at the time of the investment that appellant was on parole.
FN:6 Appellant's third and seventh points of error challenge the sufficiency of the evidence to show appellant sold an investment contract while appellant's eleventh point of error contends there was a fatal variance between the allegations in the indictment (which allege appellant sold an investment contract and working interest in an oil and gas well) and the proof offered at trial (which, according to appellant, shows a loan). Our conclusion that the evidence is sufficient to show the sale of a working interest disposes of appellant's claim that (1) the indictment failed to notify him of the nature of the charges against him, and (2) a fatal variance existed between the indictment and the proof offered at trial.
FN:7 David Grauer, the State's securities expert, also testified there was an actual sale of a working interest in this case.
FN:8 This case is distinguishable from Chesnut v. Coastal Oil & Land Corp., 543 S.W.2d 154 (Tex. Civ. App.--Corpus Christi 1976, writ ref'd n.r.e.) because, in that case, the evidence showed that, when the appellee procured the oil and gas lease from a third party, it was acting on behalf of the appellants. Thus, the court concluded that the later assignment from the appellee to the appellants, although titled an assignment, was not really a "sale" as that term is defined under the act. Id. at 157-58. Here, there was no prior agreement between appellant and Simon that appellant would procure the twenty percent carried working interest (or a portion thereof) on Simon's behalf. Accordingly, we conclude the reasoning in Chestnut does not apply.
FN:9 We note additionally that if the assignment were actually collateral, as appellant contends, rather than the sale of a portion of ORC's interest in the well, the assignment would likely have contemplated the return of the "collateral" upon full repayment of the $75,000 "loan." In this case, there is no language requiring a return of the "collateral" upon repayment of the debt. In addition, language in the "note" contemplates that payments made pursuant to the assignment may actually exceed the original $75,000 paid by Simon. Because it appears that, under the terms of the assignment, Simon will retain the fractional interest in the well even after the $75,000 is repaid, we conclude a rational jury could find that the assignment was more than just collateral for a loan.
FN:10 We note additionally that the record contains evidence showing (1) appellant failed to disclose his prior criminal history to Simon prior to Simon's investment, and (2) Simon would not have made the investment had he known this information.
FN:11 Although an amendment may also be objectionable under article 28.10(c) if it prejudices the accused's substantial rights, we note that appellant has not made any independent argument that the amendment was improper because it prejudiced his substantial rights. In his brief, appellant argues only that the amendment prejudiced his substantial rights by charging an additional or different offense. Having concluded that the amendment did not charge an additional or different offense, we likewise conclude that appellant has not shown any "prejudice to his substantial rights."
FN:12 Specifically, appellant complains about the trial court's decision to (1) hold him without bond, (2) deny his motion for continuance, and (3) allow counsel to withdraw from representation on the day of trial.
FN:13 Although the State reads this point to be a complaint about the failure to grant a challenge for cause, we note that appellant's point of error specifically states that the trial court erred in refusing appellant's "request for an additional peremptory challenge after denial of a challenge for cause." Unlike the State, we take appellant at his word and treat this complaint as one challenging the denial of an additional peremptory strike.
FN:14 We note additionally that even if appellant did intend to challenge the denial of a challenge for cause, he has not properly preserve this point for our review. See Nelson v. State, 848 S.W.2d 126, 134 (Tex. Crim. App. 1992) (noting that to preserve complaint regarding failure to grant challenge for cause, defendant had to show (1) he exhausted all peremptory strikes, and (2) objectionable juror was seated on panel), cert. denied, 510 U.S. 830 (1993).