Sidney Gardner v. The State of Texas--Appeal from 54th District Court of McLennan County

NO. 10-90-059-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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SIDNEY GARDNER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From 54th Judicial District Court

McLennan County, Texas

Trial Court # 89-794-C

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O P I N I O N

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Appellant, a used car dealer, and the Robinson State Bank had a "floor plan financing" arrangement whereby the bank furnished inventory money to Appellant on a car-by-car basis. The financing arrangement involved a note secured by a security agreement. Essentially, the bank would finance the purchase of a car, Appellant would sign a trust receipt, and the bank would transfer the car's title to Appellant with the understanding that he would deliver its sales proceeds to the bank to be applied on the note.

Appellant was convicted of hindering a secured creditor under an indictment which alleged five instances when he failed to account for proceeds as required by the security agreement. See Tex. Penal Code Ann. 32.33 (Vernon 1989). Points on appeal concern the indictment, parol evidence, joinder of offenses, the charge, an improper question, the terms and conditions of probation, and sufficiency of the evidence. We will affirm the conviction but remand the cause to the trial court for a determination of the terms of restitution.

Appellant filed a motion to quash the indictment on the ground that it failed to state an offense. His first point is that the court erred when it denied the motion. To preserve a complaint for review, the complaining party must make a timely motion stating the specific grounds for the ruling desired and obtain a ruling on the motion. Tex. R. App. P. 52(a). The record does not reflect that Appellant ever obtained a ruling on his motion to quash. Furthermore, a pretrial challenge to an indictment is necessary to preserve any future challenge. Studer v. State, 799 S.W.2d 263, 268-71 (Tex. Crim. App. 1990). Point one is overruled.

The State alleged in the indictment that the five specific occurrences and amounts charged were "obtained pursuant to one scheme and continuing course of conduct." Appellant argues that the five separate occurrences constituted five separate offenses. Point five is that the court erred when it allowed an impermissible joinder of offenses.

Section 32.03 of the Penal Code provides: "When amounts are obtained in violation of this chapter pursuant to one scheme or continuing courses of conduct, whether from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in determining the grade of offense." Tex. Penal Code Ann. 32.03 (Vernon 1989). Hindering a secured creditor is an offense listed in chapter 32 of the Penal Code. Id. at 32.33. Because the five specific instances constituted a continuing course of conduct, they could be considered one offense and the amounts involved could be aggregated. Accordingly, point five is overruled.

Pat Whatley, an employee of the bank, was asked to interpret a trust agreement for the jury. Appellant objected on the ground that the testimony called for a legal conclusion. He also objected on the same ground to Bud Price's testimony about the security agreement. His fourth point is that the court erred when it allowed this parol evidence concerning the construction of the security agreement.

This point is overruled for several reasons. First, Appellant's complaint at trial (legal conclusion) was different than his complaint on appeal (parol evidence). See Tex. R. App. P. 52(a); Milligan v. State, 554 S.W.2d 192, 195 (Tex. Crim. App. 1977). Second, Appellant has failed to cite any criminal authority to support his contentions. See Tex. R. App. P. 74(f). And, finally, the Rules of Criminal Evidence allow relevant testimony about an ultimate issue. See Tex. R. Crim. Evid. 402, 704.

Appellant's second and seventh points are that the court erred when it denied his motion for an instructed verdict. These points are overruled because Appellant waived any complaint when he put on defensive evidence. See Kuykendall v. State, 609 S.W.2d 791, 794 (Tex. Crim. App. [Panel Op.] 1980).

In points three, six, and nine, Appellant argues that the evidence was insufficient to support his conviction. Specifically, he asserts that the evidence was insufficient to prove that the security agreement required an accounting of sales proceeds, that he ever received any proceeds from the five transactions alleged in the indictment, and that he had the requisite intent to commit the offense. The question is whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989).

Pat Whatley testified that under the agreement with the bank Appellant was required to account for the sales proceeds when they were received by him. Bud Price, the bank's president, also said that Appellant was required to account for the sales proceeds under the security agreement. Based on the record as a whole, the evidence was sufficient to prove that the security agreement required Appellant to account for the proceeds.

Gary Lee testified that he purchased a car from Appellant for $8500, less $1000 for the trade-in. Lee called his banker from Appellant's office and the banker agreed to send Appellant the money. Florinda Maldonado, who also purchased a car from Appellant, claimed that her credit union handled the transfer of $5391 to Appellant. Sandra Ashley made an "even trade" with Appellant, her "1982 Diesel Cadillac for [a] 1981 Regal." Evidence in the record clearly indicated that the value of the Ashley transaction was $2250. Based on the record as a whole, the evidence was sufficient to prove that Appellant received at least $10,000 proceeds from these transactions.

The Penal Code provides that "a person is presumed to have intended to appropriate proceeds if the person does not deliver the proceeds to the secured party or account to the secured party for the proceeds before the 11th day after the day that the secured party makes a lawful demand for the proceeds or account." Tex. Penal Code Ann. 32.33(f) (Vernon 1989). The State introduced into evidence a letter, dated February 18, 1989, from the bank's attorney to Appellant demanding the sales proceeds or an accounting. Whatley testified that the bank sent the demand letter to Appellant and received no response within eleven days. This evidence was sufficient to raise the presumption that Appellant intended to appropriate the proceeds. See id. Furthermore, the evidence showed that Appellant, in violation of the security agreement, removed vehicles from his lot without notifying the bank. Whatley demanded that Appellant return the cars to the lot, but Appellant neither complied with the demand nor disclosed the location of the cars to the bank. Appellant's intent to appropriate the sales proceeds can be inferred from these actions. See, e.g., Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985) (holding that the intent to commit theft can be inferred from a burglarious entry at night). Points three, six, and nine are overruled.

The court defined "property" in the charge. Point eight is that, by including the definition, the court commented on the weight of the evidence because the term did not need to be defined. In support of his point, Appellant cites "Entries v. State, 652 S.W.2d 370 (Tex. Crim. App. 1983)." That case is not published at 652 S.W.2d 370, and we are unable to locate any case with that style. However, assuming that "property" is a common term which need not be defined, we hold that including its definition in the charge did not contribute to Appellant's guilt or punishment beyond a reasonable doubt. See Tex. R. App. P. 81(b)(2). Point eight is overruled.

During the punishment phase, the prosecutor asked a defense witness, "Are you aware that [Appellant] never paid child support for those two girls?" The court sustained Appellant's objection to the question, instructed the jury not to consider "this" for any purpose, but denied his motion for a mistrial. Point ten is that the court erred when it denied the motion.

Because the witness testified about Appellant's reputation, the State was entitled to cross-examine him using "are you aware" questions. See Tex. R. Crim. Evid. 405(a); Bratcher v. State, 771 S.W.2d 175, 187 (Tex. App. San Antonio 1989, no pet.). Even assuming that the question was improper, asking an improper question does not constitute reversible error unless there is obvious harm to the defendant. Yarbrough v. State, 617 S.W.2d 221, 228 (Tex. Crim. App. [Panel Op.] 1981). Furthermore, any error caused by an improper question will generally be cured by an instruction to disregard. Brown v. State, 692 S.W.2d 497, 501 (Tex. Crim. App. 1985). Asking an improper question mandates a reversal only when the question itself is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing its impression on the jury. Id.

Point ten is overruled for several reasons. First, the question was proper. Second, even if the question were improper, the court's instruction cured any error. And, finally, we find beyond a reasonable doubt that any error did not contribute to Appellant's punishment. See Tex. R. App. P. 81(b)(2).

Appellant's final point is that the court abused its discretion when it set the terms and conditions for the amount of restitution. Specifically, he complains that the court erred when it ordered him to "pay restitution in the amount determined by the Adult Probation Department and as set out by them." At the sentencing hearing the following occurred:

COURT: I think I have broad enough discretion. The evidence is in the case, and it's a matter of record, but the Court is going to set the amount of restitution to be paid by [Appellant] in this cause at the amount shown by the five exhibits, of the value of the cars, the exhibit[s] showing the value of the five cars.

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That includes the car that the State abandoned, but I think I have the discretion to order restitution in that amount, and that is the amount that I am setting restitution . . . you shall pay your restitution in the total amount as shown by the evidence, the value of the five cars, shown by the exhibits which were introduced into evidence in this cause, and they each have a separate, definite amount, and it's not a question that the Court is guessing at that amount, the record will reflect the value of those cars as shown by the evidence in this case, and the way you will pay that will be you are set up a program of payment, as set by the Probation Department of McLennan County, Texas, which is customary in this County that they determine the amount of your earnings, and that you make a monthly payment of restitution, towards restitution, and towards the payment of your fine, and a service supervision fee of forty dollars per month, which is the standard fee for supervising you during probation.

(Emphasis added).

The court shall determine the terms and conditions of probation. Tex. Code Crim. Proc. Ann. art. 42.12 11(a) (Vernon Supp. 1991). Setting the amount of restitution is within the discretion of the court, and the court's order will not be disturbed unless there was an abuse of discretion. Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. [Panel Op.] 1980). There must be some evidence in the record to support the amount of restitution ordered. Id. Here, although the court did not specify the actual dollar amount of restitution ordered, that amount, $21,575, was readily ascertainable from the exhibits. Therefore, we hold that the court did not abuse its discretion when it set the amount of restitution.

However, a court may not delegate its authority to set the terms and conditions of restitution. DeLeon v. State, 466 S.W.2d 573, 574 (Tex. Crim. App. 1971); Garcia v. State, 694 S.W.2d 583, 584-85 (Tex. App. Corpus Christi 1985, no pet.). The court ordered Appellant to "set up a program of payment, as set by the Probation Department of McLennan County, Texas." This constituted a impermissible delegation of its authority to set the terms and conditions of restitution. Point eleven is sustained. We affirm the conviction but remand the cause for a determination of the terms of payment of the restitution.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings and

Justice Vance

Affirmed in part; reversed and remanded in part

Opinion delivered and filed September 11, 1991

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