Opinion
11-19-00342-CR
10-07-2021
BOBBY RAY SEWELL, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. See Tex. R. App. P. 47.2(b).
On Appeal from the 358th District Court Ector County, Texas Trial Court Cause No. D-16-1492-CR
Panel consists of: Bailey, C.J, Williams, J., and Wright, S.C.J.
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.
MEMORANDUM OPINION
W. BRUCE WILLIAMS, JUSTICE
The grand jury indicted Bobby Ray Sewell for one count of forgery of a financial instrument and one count of tampering with a governmental record. The jury found Appellant guilty of both offenses. For the tampering offense, the jury assessed Appellant's punishment at confinement for four years in the Institutional Division of the Texas Department of Criminal Justice and a $5,000 fine. For the forgery offense, the jury assessed Appellant's punishment at confinement for two years in the State Jail Division of the Texas Department of Criminal Justice and a $5,000 fine but, as to this offense, recommended that his sentence be suspended and that he be placed on community supervision. The trial court sentenced Appellant accordingly and, for the forgery offense, placed him on community supervision for a term of five years. We affirm.
Issues
On appeal, Appellant presents two issues and argues that (1) the trial court erred when it denied his motion for continuance and (2) the trial court erred by admitting evidence of an extraneous act that was ultimately used as impermissible character evidence.
Background Facts
Because Appellant does not challenge the sufficiency of the evidence on appeal, we will only recount those facts necessary for the resolution of the issues.
On the morning of trial, the trial court held a hearing on Appellant's motion for continuance that was filed the day prior. In the motion, Appellant requested a continuance of at least thirty days to investigate new evidence that he had received on that day. At the hearing, Appellant testified that "months ago" Eben Warner, his former real estate attorney for the transactions at issue, informed Appellant's trial counsel that he possessed a "fishy document" that could possibly be harmful to Appellant in this criminal trial. Appellant testified that his trial counsel then advised Appellant to go to Warner's office. Appellant testified that, when Appellant went to Warner's office to view the document, Warner told him that he did not have a copy of it and that he did not even remember what the document was about.
Warner later contacted Appellant's trial counsel again, who in turn advised Appellant to revisit Warner's office about the "fishy" document. Appellant did not again visit Warner at his office until the day before the hearing. This time, Warner gave Appellant a copy of two receipts, one from February 2015 and another from July 2015. Both receipts had the same receipt number and one of the receipts looked like it might have been altered with white-out.
The trial court ultimately denied Appellant's request for additional time to inquire into the situation, stating that the possibility of the existence of the suspicious document was known to Appellant "many, many months ago." The trial court continued that it was "not inclined to continue the case based on information that could have been developed months ago by [Appellant] and information that was known to him."
At trial, the State presented testimony which established that in 2015, Appellant was interested in purchasing a home in Ector County that was owned by three siblings: Tammy Bolt, Cynthia Reno, and Theron Marler. Appellant successfully purchased the interests of Tammy and Cynthia and had them sign a special warranty deed to that effect, but Theron refused to sell his interest at a price that Appellant was willing to pay. The State argued that, because Theron refused to sell, Appellant forged Theron's signature on a special warranty deed, had the forged deed notarized, and then presented the forged deed to his attorney, Warner, as a valid deed to be recorded at the Ector County Clerk's office.
The defense argued that Dennis Bolt, Tammy's husband, informed Appellant that Theron had changed his mind and was now willing to sell his interest for $10,000. However, Dennis also related that, because Theron was an alcoholic, he did not get along with other people, and so Dennis proposed that he deliver, on Appellant's behalf, the $10,000 to Theron along with the special warranty deed for him to sign. Appellant testified that he agreed and that he gave the money and the unsigned deed to Dennis to deliver to Theron. Later that day, Appellant picked up a signed special warranty deed from Dennis supposedly signed by Theron, had the deed notarized, and then delivered it to Warner to be duly filed at the Ector County Clerk's office.
To the contrary, Theron testified that he told Appellant that he was not willing to sell his interest and that he had no further contact with Appellant; he also denied having any contact with Dennis regarding Appellant's purchase of Theron's interest. Theron denied signing any special warranty deed. While both the State and Appellant agreed that Theron's signature was forged, Appellant argued at trial that it was Dennis who forged the signature and ran off with the $10,000. Indeed, during defense counsel's opening statement, he stated, "So what may have happened to [Appellant] is he got defrauded and cheated out of $10,000.00 . . . ." Counsel also stated that "[Appellant] just got hustled."
During cross-examination, the State attempted to elicit testimony from Appellant regarding the suspicious receipts that had been the subject of the previous motion for continuance. Appellant's counsel objected to the evidence as irrelevant extraneous evidence. The State responded that it sought to introduce the receipts to rebut Appellant's defense of a "frame-up job." The trial court overruled Appellant's objection and stated:
I believe even from your opening statement, your position has been that your client was defrauded, which would indicate either a fabrication or a frame-up, so the evidence would certainly . . . be relative to a defensive theory that the State would be entitled to rebut. There has been other evidence admitted, some on direct, that would indicate that this evidence would be admissible and relevant. Not only to intent but to the handwritings that are in dispute as well. So I understand the objections that you are making but your objections are overruled.
The trial court also instructed the jury that it could not consider the extraneous offense evidence for any purpose unless it believed and found beyond a reasonable doubt that Appellant "committed these acts or committed the offenses that are being alleged at this time." Appellant's trial counsel did not object to the trial court giving an instruction or to the instruction's wording and does not object to the instruction as part of this appeal.
Discussion
1. The trial court did not abuse its discretion in denying Appellant's motion for continuance.
In his first issue, Appellant claims the trial court erred in denying his motion for continuance.
Standard of Review
We review a trial court's ruling on a motion for continuance for an abuse of discretion. Walter v. State, 581 S.W.3d 957, 983 (Tex. App.-Eastland 2019, pet. ref'd) (citing Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007)). Indeed, "[a] request for delay to permit further investigation or other preparation for trial is based on nonstatutory and therefore equitable grounds. It is particularly within the discretion of the trial court." Gonzales v. State, 304 S.W.3d 838, 844 n.11 (Tex. Crim. App. 2010) (quoting George E. Dix & Robert O. Dawson, 42 Texas Practice: Criminal Practice and Procedure § 28.56 (2d ed. 2001)).
Analysis
Appellant must satisfy a two-prong test to show error based on the denial of a pretrial motion for continuance. See id. at 843. First, Appellant must show that "the case made for delay was so convincing that no reasonable trial judge could conclude that scheduling and other considerations as well as fairness to the State outweighed the defendant's interest in delay of the trial." Id. (quoting Dix & Dawson, supra). Second, in the event that the first prong is met, Appellant must demonstrate that he was actually prejudiced by the denial of his continuance motion. Id. This standard is satisfied if the defendant can establish "with considerable specificity" how he was harmed by the absence of more preparation time than he actually had. Id. at 842 (quoting Dix & Dawson, supra).
Ordinarily, this showing can only be made at a hearing on a motion for new trial, "because almost always only at that time will the defendant be able to produce evidence as to what additional information, evidence or witnesses the defense would have had available if the motion for delay had been granted." Id. at 842-43 (quoting Dix & Dawson, supra). In his brief, Appellant does not claim to now have discovered additional information that he did not have at trial, nor does he claim to be able to explain from where the forged receipt came. Appellant does not explain what additional information would have been discovered had the continuance been granted. Further, Appellant does not set out in his brief what additional information, evidence, or witnesses the defense would have had available at trial had a continuance been granted.
Concerning the first prong, Appellant states that "[w]ith only two days' notice, Appellant and Appellant's trial counsel were simply unable to investigate the origins of the allegedly forged receipt." However, at the hearing on his motion for continuance, Appellant admitted that months before the hearing, Appellant's trial counsel was made aware of a suspicious document in Warner's possession, and Appellant was told to contact Warner, which Appellant did. The record is clear that Appellant was on notice of the existence of a suspicious document and the need to investigate for a significantly longer period than two days.
While the receipts themselves were not given to Appellant until very close to the beginning of trial, when asked why he did not originally continue to press Warner about the documents any more than he did, Appellant stated that "when [Warner] said he didn't have a copy of it, I didn't bug him anymore." Here, the record suggests that Appellant made no additional efforts to investigate the situation, and the record does not suggest that he was prevented from doing so. From this, we do not believe it was unreasonable for the trial court to conclude that Appellant's case for delay lacked merit, especially in light of the fact that this was Appellant's fourth motion for continuance.
Having failed to carry his burden with regard to the first prong under Gonzales, we do not reach the second prong of Appellant's burden of proof to demonstrate that he was actually prejudiced by the failure of the trial court to grant a continuance. Regardless, Appellant fails to show prejudice. With regard to a showing of prejudice, Appellant argues that he was harmed because "he was denied the ability to investigate the facts regarding and origins of the allegedly forged receipt" and because "his trial counsel failed to make all available objections to the receipt and . . . failed to object to the vague, extraneous-evidence, limiting instruction, possibly due to the lack of preparation time caused by the denial of motion of continuance."
However, as discussed previously, the trial court was entitled to conclude that Appellant had ample opportunity to investigate but chose not to do so. Moreover, Appellant has not stated what other investigation he would have conducted, what witnesses he would have called, or what additional information such an investigation would have yielded, other than speaking with Warner as he had twice before trial, had the continuance been granted. In addition, while Appellant did object to the admission of the receipts as irrelevant, Appellant also claims that, if he had had adequate preparation time, he would have objected to the State's "failure to authenticate the receipt or to the improper foundation laid by the State." Yet, Appellant has presented no evidence to show that the omission of these and any other objections was in fact due to a lack of available preparation time. Appellant also offers no authority to support his claim that, had the objections been made, they would have been sustained by the trial court or that the State would not have then taken additional steps to authenticate. Appellant's claim of prejudice, therefore, is not sufficiently specific nor supported. Thus, we hold that the trial court did not abuse its discretion in denying Appellant's motion for continuance. We overrule Appellant's first issue.
Appellant did file a motion for new trial, but the record does not suggest that the trial court ever ruled on it. In any event, the motion only claims error based on the denial of the motion for continuance and "other errors of law."
2. The trial court did not abuse its discretion in admitting evidence of an extraneous offense.
In his second issue, Appellant argues that the trial court erred in admitting evidence of an extraneous offense as it was ultimately improper character evidence.
Standard of Review
A trial court's ruling on the admissibility of extraneous offense evidence is reviewed under an abuse of discretion standard. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). As long as the trial court's ruling is within the zone of reasonable disagreement, there is no abuse of discretion, and the trial court's ruling will be upheld. Id. at 343-44. Furthermore, if the trial court's evidentiary ruling is correct on any theory of law applicable to that ruling, it will not be disturbed even if the trial judge gave the wrong reason for his right ruling. Id.
Analysis
Rule 404(b) of the Texas Rules of Evidence prohibits the admission of evidence of extraneous offenses committed by the defendant for the purpose of proving that, on the occasion in question, the defendant acted in conformity with the character demonstrated by the other bad acts. Santellan v. State, 939 S.W.2d 155, 168 (Tex. Crim. App. 1997). However, evidence of extraneous offenses is admissible if it is relevant to a fact of consequence apart from the tendency to show conduct in conformity with character. See Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). The exceptions listed under Rule 404(b)(2) are neither mutually exclusive nor collectively exhaustive. De La Paz, 279 S.W.3d at 343. Even if evidence is admissible under Rule 404(b), the trial court may exclude the same evidence if it determines that the probative value of such evidence is substantially outweighed by its unfair prejudice. Tex. R. Evid. 403.
"Rebuttal of a defensive theory is one of the 'other purposes' for which extraneous-offense evidence may be admitted under Rule 404(b)." Sandoval v. State, 409 S.W.3d 259, 297 (Tex. App.-Austin 2013, no pet.) (quoting Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009)). "By raising a defensive theory, the defendant opens the door for the State to offer rebuttal testimony regarding an extraneous offense if the extraneous offense has common characteristics with the offense for which the defendant was on trial." Richardson v. State, 328 S.W.3d 61, 71 (Tex. App.-Fort Worth 2010, pet. ref'd). Further, an opening statement in which defense counsel presents a defensive theory can open this door. Dabney v. State, 492 S.W.3d 309, 317 (Tex. Crim. App. 2016). However, simply advancing a defensive theory does not automatically mean extraneous offense evidence is admissible to rebut it. Sandoval, 409 S.W.3d at 301. Rather, "[t]he evidence of extraneous misconduct must logically serve to make more or less probable defensive evidence that undermines an elemental fact." Id.
Here, the record reflects that Appellant did present as a defensive theory the argument that he personally did not forge the document but, rather, was defrauded by the forgery of a third person-Dennis Bolt. Thus, the State was entitled to present evidence to rebut the third-person forgery theory and his denial of first-person forgery. Appellant does not argue that the charged offense and the extraneous offense are not similar or do not share common characteristics-undeniably, both acts would be considered forgeries. See Tex. Penal Code Ann. § 32.21 (West Supp. 2020). Instead, Appellant argues that the extraneous misconduct did not logically serve to make it more or less probable that Appellant was defrauded by the forgery of a third person. We disagree.
The similarity required between the extraneous offense evidence and that of the charged offenses is less where the extraneous evidence is used to rebut a defensive theory. Dennis v. State, 178 S.W.3d 172, 179 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd). It need only make more or less probable defensive evidence that undermines an elemental fact. Sandoval, 409 S.W.3d at 301. The extraneous evidence of the suspicious receipt was evidence of an act similar to the charged conduct but unrelated to either Dennis Bolt or Theron Marler. Thus, the trial court could have reasonably concluded that this evidence logically served to show that Appellant's defensive theory of a "frame-up" or "fabrication" by a third person was less likely to be true. See id. (In a child sexual assault case, the court stated, "[i]f the State can show that a defendant has committed similar sexual assaults against unrelated and unconnected children, a defense allegation that the complainant fabricated her claim is less likely to be true."). By showing that Appellant's third-person frame-up defense was less likely to be true, the extraneous offense evidence had relevance aside from character conformity. Appellant's defensive theory of third-party forgery, "frame-up," or "fabrication" was intended to undermine the elemental fact to be proven by the State: forgery committed by Appellant. Evidence of extraneous misconduct of Appellant's forged receipts, with no explanation other than implied third-party involvement, logically serves to make less probable Appellant's defensive theory of third-party forgery of Appellant's deed. Id. At the very least, whether the forged extraneous receipt juxtaposed with the forged deed in this matter discredits Appellant's defensive theory is subject to and within the zone of reasonable disagreement; consequently, its admission into evidence was not an abuse of discretion. See De La Paz, 279 S.W.3d at 343-44.
Appellant also appears to argue in his brief that the extraneous offense evidence would be inadmissible under Rule 403 as more prejudicial than probative. However, a complaint on appeal must comport with the objections made at trial, and an objection stating one legal theory cannot be used to support a different legal theory on appeal. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Rothstein v. State, 267 S.W.3d 366, 373 (Tex. App.-Houston [14th Dist.] 2008, pet. ref'd). When Appellant's trial counsel objected to the extraneous offense evidence, he lodged a relevance objection and an "extraneous matter" objection. He did not object to the admissibility of the evidence under Rule 403. Because Appellant did not object under Rule 403, he has not preserved this portion of his second issue for appellate review. See Berry v. State, 233 S.W.3d 847, 857 (Tex. Crim. App. 2007); Jackson v. State, 562 S.W.3d 717, 721 (Tex. App.-Amarillo 2018, no pet.). Even if Appellant had preserved error by proper objection, it would not have been unreasonable for the trial court to conclude that the probative value of the extraneous evidence would not have been substantially outweighed by the risk of unfair prejudice-especially because the trial court provided a limiting instruction not objected to by Appellant and because the evidence was not offered during the State's case-in-chief. As admitted by Appellant in his brief, "[t]he State did not mention the allegedly forged receipt in opening statements and only mentioned it in closing statements to argue that Appellant's handwriting expert, in stating that Appellant had not forged the receipt, was not credible." The probative value of the extraneous evidence was not, therefore, substantially outweighed by any unfair prejudice at trial. For the reasons discussed previously, we hold that the trial court did not abuse its discretion, and we overrule Appellant's second issue.
This Court's Ruling
We affirm the judgments of the trial court.
Trotter, J., not participating.