Opinion
NO. 09-10-00195-CR
04-25-2012
STEPHEN CRAIG WOOD, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause No. 09-04-04032 CR
MEMORANDUM OPINION
In two counts, the State charged Stephen Craig Wood with committing theft of property. Each count asserts that the property that was stolen had a value, in the aggregate, of $200,000 or more. See Tex. Penal Code Ann. § 31.03 (West Supp. 2011), § 31.09 (West 2011). Following a trial, the jury found Wood guilty, on each count, "of Aggregate Theft, as charged in the indictment."
We cite to the current version of this provision of the statute because the subsequent amendment does not affect the outcome of this appeal.
Wood elected to have the trial court assess his punishment. After finding that the State of California and the State of Washington had each convicted Wood of a prior felony, as alleged in his indictment, the trial court sentenced Wood on each of the aggregate theft counts to serve forty-two years in prison. The judgment for each conviction allows Wood to serve his sentences concurrently. See id. § 12.42(d) (West Supp. 2011).
Because the subsequent amendment does not affect the outcome of this appeal, the current version of this section is also cited.
Wood raises four issues in his appeal. In Issue One, Wood argues that his rights under the Confrontation Clause were violated by the admission of exhibits that he contends were testimonial. In Issue Two, Wood contends that the jury charge lowered the State's burden of proof, allowing the jury to return a non-unanimous verdict. In Issue Three, Wood contends that the prosecutor, over his objection, misstated the law during closing argument when explaining the crime of aggregate theft. In his last issue, Wood argues that there is insufficient evidence to support the trial court's finding that he is the same person convicted in the State of Washington of robbery in 1968. We affirm the judgments signed by the trial court on each of the respective counts.
Background
Wood and his son, Geoffrey Wood, through their business, American Classic Cars, sold classic cars that had been consigned to American Classic by the respective car's owner. In 2008, the Montgomery County Auto Theft Task Force began to receive complaints from people who had either consigned or purchased cars from American Classic. The consignors' complaints concerned claims of non-payment; various of the purchasers' complaints concerned claims of non-delivery while others concerned American Classic's failure to deliver a certificate of title in connection with its respective sale.
In April 2009, a Montgomery County grand jury indicted Wood on two counts of theft. One of the counts alleged theft of currency with an aggregate value of $200,000, or more; the other alleged that Wood had stolen twelve vehicles with an aggregate value of $200,000, or more. See id. § 31.09. Wood's indictment includes two enhancement paragraphs: the first alleges that Wood had been convicted for misappropriating public funds, a felony, in California; the second enhancement paragraph asserts that Wood had been convicted for committing a robbery in the State of Washington, also a felony.
Confrontation Clause
In issue one, Wood complains the trial court erred by admitting several exhibits, over his objection, that he contends provided testimonial evidence about a contract between American Classic and Rodrigo Rivero Lake. According to Wood, the admission of this evidence, State's Exhibits 13F, 13K, 13L, and 13O, violated his right to confront Lake, who did not testify as a witness during the trial. In response to Wood's argument, the State argues that these exhibits are non-testimonial, and the State concludes that Wood's Confrontation Clause rights were not violated.
The Confrontation Clause of the Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" U.S. Const. amend. VI; see Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Sixth Amendment right to confrontation bars the admission of testimonial hearsay statements of a witness who does not appear at trial unless the witness is unavailable to testify at the trial and the defendant had a prior opportunity to cross-examine the witness. De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008) (citing Crawford, 541 U.S. at 59). Generally, the Confrontation Clause applies to witnesses who "bear testimony[,]" and testimony is typically "a solemn declaration or affirmation made for the purpose of establishing or proving some fact." Crawford, 541 U.S. at 51. On the other hand, the Confrontation Clause does not generally apply to evidence that is not "testimonial," and determining whether evidence is "testimonial" is decided as a question of law. De La Paz, 273 S.W.3d at 680. On appeal, a de novo standard applies to determine whether evidence is "testimonial." Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010); Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006).
Of the four exhibits that relate to Wood's confrontation claim that concern documents pertinent to the sale of Lake's Bentley, we first address Wood's claim that Exhibit 13F is testimonial under Crawford. State's Exhibit 13F is the written contract agreement between American Classic and Lake, which authorized Wood, on behalf of American Classic, to sell Lake's Bentley on consignment. Wood sent the consignment agreement to Lake, and Wood requested that he sign and return it. The agreement bears the signatures of Lake and Wood.
Although Crawford does not provide a comprehensive definition of all evidence considered to be "testimonial," the Crawford Court did identify certain types of statements considered to be testimonial, specifically:
ex parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially, . . . extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions, . . . statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial[.]Crawford, 541 U.S. at 51-52, 68 (internal citations and quotations omitted).
Exhibit 13F is not like any of the types of statements that Crawford identified as being "testimonial." For example, Exhibit 13F does not contain solemn declarations made by either Lake or Wood for the purpose of later establishing or proving some fact in a criminal trial. See Crawford, 541 U.S. at 51-52; see also Langham, 305 S.W.3d at 576. Exhibit 13F does not function like an affidavit, it is not the product of a custodial interrogation, it is not prior testimony from a court proceeding, and there is nothing in the record to indicate that Exhibit 13F was made with the expectation that it would be used in a criminal prosecution. We conclude that Exhibit 13F does not contain "testimonial" statements that are subject to the Confrontation Clause. See Crawford, 541 U.S. at 51-52. We hold the trial court did not err in admitting State's Exhibit 13F over Wood's Confrontation Clause objection. See id.
Next, we address the trial court's decision to admit State's Exhibits 13K and 13L. State's Exhibits 13K and 13L are American Classic's Buyer's Orders, which appear to be standard form agreements intended to evidence the terms of a commercial agreement between American Classic and two of the prospective purchasers of Lake's Bentley. Each Buyer's Order bears Wood's signature, but neither bears Lake's signature. The Buyer's Orders were created to document a commercial transaction, and nothing in the record shows that when the Buyer's Orders were created, the parties to them reasonably expected that they would be used in a criminal prosecution. See Crawford, 541 U.S. at 51-52; see also Langham, 305 S.W.3d at 576. Because Exhibits 13K and 13L are not "testimonial" as defined by Crawford, the trial court did not err in overruling Wood's Confrontation Clause objections to them. See Crawford, 541 U.S. at 51-52.
Last, with respect to the documents that concern Lake's Bentley, we address the trial court's decision to admit Exhibit 13O. State's Exhibit 13O is an email sent from American Classic's email address to Lake's email address. The email references the consignment agreement. Exhibit 13O appears to have been sent to Lake by Wood: Wood's name is typed at the end of the email. In the email, Wood asks that Lake sign the consignment order and car title and return them, giving "us permission to sell your car[.]" According to the email, the agreement allowed American Classic to sell Lake's Bentley and served as Lake's receipt. In ruling on Wood's objection, the trial court stated that Wood's email consisted of statements made by Wood, not Lake. See Tex. R. Evid. 801(e)(2) (defining admissions by a party-opponent as not being hearsay). Having examined the exhibits at issue and the record, we conclude that Exhibit 13O is part of a commercial transaction and nothing in the record shows that it was created with the expectation that it would later be used in a criminal prosecution. See Crawford, 541 U.S. at 51-52; see also Langham, 305 S.W.3d at 576. We conclude that Exhibit 13O does not contain "testimonial" statements disallowed by Crawford. See Crawford, 541 U.S. at 51-52.
Wood also contends that the trial court's decision to admit State's Exhibits 14B and 14F violated his right to confront Gervis Gayle. Exhibit 14B is another Buyer's Order, and it evidences Gayle's agreement to purchase a vehicle from American Classic. The Buyer's Order bears Wood's signature, and it contains a statement that Gayle's signature was "[b]y phone[.]" We conclude that Exhibit 14B was part of a commercial transaction for the purchase of a car: nothing in the record shows that it was created by a person with the expectation that it would later be used in a criminal prosecution. See Crawford, 541 U.S. at 51-52; see also Langham, 305 S.W.3d at 576. As Exhibit 14B does not contain "testimonial" statements that raise Confrontation Clause concerns under Crawford, we conclude that the trial court did not err in admitting State's Exhibit 14B over Wood's Confrontation Clause objection. See Crawford, 541 U.S. at 51-52.
Wood's other argument concerns a second document pertinent to American Classic's transaction with Gayle, State's Exhibit 14F. Exhibit 14F is a facsimile copy of a letter dated August 2008 sent by Gayle. In the letter, Gayle demands that Wood and his son, Geoffrey, either deliver the car that Gayle had purchased earlier that month or refund his money. Wood objected to the letter, claiming that it violated his right to confrontation. The trial court overruled Wood's objection and admitted Gayle's demand letter; the letter's date reflects that Gayle sent it thirteen days after American Classic failed to deliver the vehicle he had agreed to purchase. The demand letter addresses a civil matter, American Classic's failure to perform its contract. Given the purpose of Gayle's demand letter, as well as the absence of evidence in the record showing that Gayle wrote the letter with the expectation that it would later be used as part of a criminal prosecution, we conclude that the admission of Exhibit 14F did not violate Wood's rights under the Confrontation Clause. See Crawford, 541 U.S. at 51-52; see also Langham, 305 S.W.3d at 576.
Having found each of Wood's Confrontation Clause arguments to be without merit, we overrule issue one.
Charge Error
In issue two, Wood complains that Counts One and Two of the charge failed to track the language in the indictment. Wood also complains that the charge allowed the jury to reach a less than unanimous verdict on both counts.
We review a claim asserting charge error by considering whether an error exists in the charge and, if so, whether the harm resulting from the alleged error requires a reversal of the jury's verdict. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005). In response to Wood's argument, the State contends that error does not exist in the charge.
Regarding Wood's argument addressing the variance between the language of the indictment and the language in the charge, Count One of the indictment asserts that Wood unlawfully appropriated currency from several people who are then identified in a list which has been joined using the conjunction "and" between the last two names. In describing the persons who are alleged to be the victims of the crime, Count One of the charge, unlike the indictment, utilizes the disjunctive conjunction "or" between the last names in the series. According to Wood, charging the jury in the disjunctive rather than the conjunctive allowed the jury to convict him without being required to find that he took currency with a value of at least $200,000 from the nine people identified by their names in the indictment.
Under Count Two of the indictment, Wood contends the State was required to show that he unlawfully appropriated exactly twelve vehicles to prove his guilt. As Wood points out, Count Two of the charge asked the jury to determine if Wood had unlawfully appropriated motor vehicles without mention of their number. According to Wood, the charge's failure to require proof of the theft of twelve vehicles, as charged in Count Two, reduced the State's burden of proving its case. Moreover, by virtue of the disjunctive phrasing and the charge's failure to track the number of vehicles alleged in Wood's indictment, Wood also argues that the charge allowed the jury to return a verdict that was not unanimous. Wood makes a similar argument regarding Count One of the charge.
First, we address Wood's complaint that the charge's failure to identify a specific number of vehicles consistent with the number of vehicles identified in his indictment allowed the jury to reach a non-unanimous verdict. Wood's complaint is similar to the complaint made by the defendant in Lehman v. State, 792 S.W.2d 82 (Tex. Crim. App. 1990), another case that involved a crime of aggregate theft. In rejecting the defendant's complaint of charge error, the Lehman Court concluded: "[T]he State should be allowed to plead all property which the evidence may ultimately prove stolen without thereby being required to prove theft of any larger quantum of property than the statute at issue requires." Id. at 84-85. The Lehman Court overruled Lehman's complaint of charge error, reasoning that the variance between Lehman's indictment and the charge was not material. Id. at 85-88. Where an indictment charges an individual with the appropriation of property in an aggregate amount pursuant to one scheme or continuous course of conduct, the State is not required to prove each individual appropriation; rather, it must prove theft of property described in the indictment in an amount sufficient to satisfy the jurisdictional requirement of its pleading, which in Wood's case, on each count, amounted to a sum of at least $200,000. See Lehman, 792 S.W.2d at 84-85; Harrell v. State, 834 S.W.2d 540, 543 (Tex. App.—Houston [14th Dist.] 1992, pet. ref'd) ("It is sufficient if the State shows enough of the property was stolen to meet the aggregated value allegation."). We conclude that the charge in his case did not allow the jury to reach a less than unanimous verdict for the crime of aggregate theft.
Next, we address Wood's arguments that concern the variances between language of the counts of his indictment, which charged in the conjunctive, and the language employed in the counts of his charge, which the trial court phrased in the disjunctive. Here, each count in Wood's indictment alleges, in the conjunctive, different methods of committing the same offense, aggregate theft. See Tex. Penal Code Ann. § 31.09. Under Texas law, the State may plead in the conjunctive and charge in the disjunctive. See Cada v. State, 334 S.W.3d 766, 771 (Tex. Crim. App. 2011) (citing Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991)).
Because each of the counts in the indictment and each of the counts in the charge allege the crime of aggregate theft, it was not necessary for the State to show that Wood unlawfully appropriated currency or property from each of the individuals identified as having been a victim of Wood's offenses; instead, all the State needed to prove was that the value of the currency, with respect to Count One, or the value of vehicles stolen, with respect to Count Two, amounted to at least $200,000. See Lehman, 792 S.W.2d at 84-85; De La Fuente v. State, 264 S.W.3d 302, 318-19 (Tex. App.—San Antonio 2008, pet. ref'd). Wood does not argue that the evidence is insufficient to show that currency with a value of at least $200,000 was taken from at least one of the person's identified in the indictment. Wood also does not argue that the State's evidence is insufficient to show that the vehicles that were stolen were not worth at least $200,000. Because aggregate values were proven with respect to each of the counts, the charge did not lower the State's burden of proving any essential element of the crime aggregate theft.
We hold that the trial court's use of a disjunctive form in the charge did not allow the jury to return a less than unanimous verdict on either Count One or on Count Two. See Murchison v. State, 93 S.W.3d 239, 257-58 (Tex. App.—Houston [14th Dist.] 2002, pet. ref'd) ("Because it is proper to charge the jury in the disjunctive as to multiple manner and means for the commission of a single offense, we conclude the jury charge in this case did not violate appellants' right to a unanimous verdict[.]"). Having considered each of Wood's arguments, we overrule issue two.
Jury Argument
In issue three, Wood complains that the prosecutor, over his objection, was allowed to "tell the jury that they did not have to unanimously agree as to the specific criminal act constituting the commission of the offense" in the course of explaining the State's burden to prove Wood guilty under Count One of the charge. In response, the State asserts that the prosecutor did not misstate the law.
The following exchange took place during the State's closing argument:
[The State]: Okay, ladies and gentlemen, before we quickly talk about Count 2, I want to tell you something. I do not want you to be confused about this. We do not have to prove all 12 people had their money stolen. We just have to get over the $200,000.00 amount.
So let's say this: Let's say you said, "Well, we heard from everybody in person except for Gervis Gayle." Okay? And you (indicating juror) don't want to believe Gervis Gayle, because you're like, "Well, I kind of wanted to hear from him in person."
Well, let's say you (indicating another juror) believe Gervis Gayle. You don't have to agree on the people. Six of you could believe the first four or five people and get over $200,000.00. The other six of you could --
[Defense]: Objection, Your Honor, that -- that's -- that's misstating the law, that they don't have to agree on the particular theft that they're referring to in determining the amount.
[The State]: Your Honor, this is no different than a D.W.I. trial, when you do not have to agree on the manner of intoxication. You just have to believe he's intoxicated.
The Court: Very well. Your objection is overruled. I note your exception.
[The State]: So that means I was right. Six of you could agree with the first few that he stole from; the other six -- you understand that. You don't have to agree to find him guilty as far as who he stole from, although I think that you probably believe all of them.
In a case involving a claim of aggregate theft, the State is not required to prove thefts against each of the individuals identified in the indictment. Harrell, 834 S.W.2d at 543; see Tex. Penal Code Ann. § 31.09. In other words, with respect to Count One of the indictment, the State was not required to show that currency was stolen from each of the individuals named in Count One; instead, it was only required to show that currency with a value of at least $200,000 was stolen from one or more of the individuals identified in Count One. See Lehman, 792 S.W.2d at 84-85; Johnson v. State, 187 S.W.3d 591, 604-05 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd). With respect to Count Two of the indictment, the State did not have to show that Wood was guilty of stealing exactly twelve vehicles to prove Wood's guilt; instead, it was required to show that the group of vehicles the jury concluded Wood stole were among the vehicles identified in Count Two and that together had a value of at least $200,000. See Ngo, 175 S.W.3d at 745-46 ("The phrase 'manner or means' describes how the defendant committed the specific statutory criminal act."); see also Schad v. Arizona, 501 U.S. 624, 631, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (plurality op.) (explaining that "[w]e have never suggested that in returning general verdicts in such cases the jurors should be required to agree upon a single means of commission, any more than the indictments were required to specify one").
We conclude that the argument made by the prosecutor about which Wood complains did not constitute a misstatement of Texas law. The prosecutor was entitled to explain that the law required the State to prove that Wood was guilty of stealing currency that had an aggregate value of at least $200,000. We overrule issue three.
State of Washington Conviction
In issue four, Wood argues that the evidence is insufficient to support the trial court's finding that he had previously been convicted of robbery. To show that Wood was the same Stephen Craig Wood convicted under the 1968 judgment, the State offered, over Wood's hearsay objection, a booking sheet that references, by cause number, the judgment in the robbery case. The booking sheet references the same cause number as the one found on the 1968 conviction for robbery. The booking sheet includes a photograph and the date of birth for a person who is identified in the booking records as Stephen Craig Wood. At trial, and without objection, the State introduced a 1968 judgment from Washington showing that a person named Stephen Craig Wood had been convicted of robbery; a separate sentencing document was also admitted without objection showing that a person named Stephen Craig Wood had been sentenced on the conviction to serve one and one-half years in prison.
While the 1968 judgment and sentencing documents contains a name identical to Wood's, these same documents do not include other identifiers found in the booking sheet, such as a date of birth, a photo, or Wood's fingerprints. Without these additional identifiers, Wood's argues that although the names are a match, without more the evidence is insufficient to show that he is the same person who was convicted in Washington. Wood contends the booking sheet was improperly admitted, and he contends that it is the only evidence connecting him to the 1968 judgment of conviction for robbery.
In arguing that the evidence is insufficient to show that he was convicted of robbery in Washington, he asserts that the booking sheet was not admissible because it was not properly authenticated. We are not persuaded by Wood that the trial court erred by admitting the booking sheet. The record reflects that the State followed procedures to establish that the booking sheet was a business record. More than fourteen days prior to the commencement of Wood's trial, the State filed an affidavit from the custodian of records for the Indeterminate Sentence Review Board of the State of Washington. According to the affidavit of the Board's custodian, the records, which include the booking sheet now at issue, were true and correct copies of the Board's records on Stephen Craig Wood. Additionally, in a business records affidavit, the Board's custodian stated that these records were made and kept in the regular course of the Board's business. See Tex. R. Evid. 803(6) (specifying that records of regularly conduced activity are not excluded by the hearsay rule); Tex. R. Evid. 902(10) (providing for self-authentication of business records). Finally, Wood's attorney received prompt notice from the State in this case that it had filed records that included the booking sheet at issue. Wood does not complain on appeal that he did not receive notice of the State's filing.
We conclude that Wood's argument that the booking sheet was improperly admitted because it was not properly authenticated is without merit. The State authenticated the booking sheet from the State of Washington as a business record under Rule 902. See Tex. R. Evid. 902(10) (providing procedure for authentication of business records by filing the record with a business records affidavit at least fourteen days prior to the date the trial commences and requiring prompt notice of the filing). We hold that the trial court properly ruled that the records at issue were admissible and not subject to exclusion because they contain hearsay. See Tex. R. Evid. 803(6).
With the information included in the booking sheet, we also conclude that the evidence is sufficient to show that Wood is the person who was convicted in the State of Washington of a prior robbery. To establish a defendant's conviction of prior offenses, "the State must prove beyond a reasonable doubt that (1) a prior conviction exists, and (2) the defendant is linked to that conviction." Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). The fact-finder looks at the totality of the evidence to determine whether the State proved the prior conviction beyond a reasonable doubt. Id. at 923. "No specific document or mode of proof is required to prove these two elements." Id. at 921. The State may prove both of these elements in a number of different ways, including documentary proof, such as a judgment, that contains sufficient information to establish both the existence of a prior conviction and the defendant's identity as the person convicted. Id. at 921-22. The method of proving identity may often include the use of a combination of methods. Benton v. State, 336 S.W.3d 355, 357 (Tex. App.—Texarkana 2011, pet. ref'd); see also Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim. App. 1986) ("It is incumbent on the State to go forward and show by independent evidence that the defendant is the person so previously convicted."). "Absent evidence linking the defendant to the prior conviction, evidence of the prior conviction is not relevant." Benton, 336 S.W.3d at 357.
Unlike the judgment and sentence on the 1968 conviction, the booking sheet includes a photograph, a date of birth, and information linking the booking sheet to the judgment of conviction and to the sentencing document. The trial judge stated that it admitted Exhibit 29A "for the purpose of reflecting a photograph of [Wood], connected up with Exhibit 29."
Here, the information in the booking sheet matches the cause numbers referenced in the 1968 judgment and in the sentencing document. Specifically, the name of the defendant, the offense, the cause number, the county and state, the date of judgment, the Board of Prison's number, the term of sentence and the term of confinement all match. The trial court also had the benefit of comparing the photograph included with the booking sheet to the defendant, Wood, who was present in the courtroom. See Flowers, 220 S.W.3d at 925. Other evidence, specifically the documents that accompanied the judgment of conviction for Wood's 1987 conviction for misappropriation of public funds—a conviction proven by fingerprints to belong to Wood—shows that Wood's date of birth matched the date of birth that is associated with the Stephen Craig Wood imprisoned for committing a robbery in the State of Washington in 1968. See Benton, 336 S.W.3d at 359 (noting defendant's date of birth as an additional factor connecting a defendant to a prior conviction). Considering the totality of the evidence linking Wood to the prior robbery conviction, the trial judge could have rationally found, beyond a reasonable doubt, that the defendant in this case was the person convicted in Washington for robbery. See Flowers, 220 S.W.3d at 923, 925.
Linking Wood to the prior 1968 conviction made it relevant to the trial court's determination of the appropriate punishment for Wood. See Benton, 336 S.W.3d at 357. Therefore, the trial court did not err by admitting State's Exhibit 29A, and Exhibit 29A contains sufficient evidence to support the trial court's finding that Wood had been convicted in 1968 for robbery. We overrule issue four. Having overruled all of Wood's issues, we affirm the trial court's judgment.
AFFIRMED.
HOLLIS HORTON
Justice
Do Not Publish Before McKeithen, C.J., Kreger and Horton, JJ.