The State of Texas v. Keith Larosa--Appeal from 119th District Court of Tom Green County

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 3rd District Court of Appeals » 1995 » The State of Texas v. Keith Larosa--Appeal from 119th District Court of Tom Green County

State: Texas

Court: Texas Northern District Court

Docket No: 03-93-00648-CR

Case Date: 04/19/1995

Plaintiff: The State of Texas

Defendant: Keith Larosa--Appeal from 119th District Court of Tom Green County

Preview:Sidney Gardner v. The State of Texas--Appeal from
54th District Court of McLennan County
Gardmer-S v. State /**/
NO. 10-90-059-CR
IN THE
COURT OF APPEALS
FOR THE
TENTH DISTRICT OF TEXAS
AT WACO
*
SIDNEY GARDNER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
*
From 54th Judicial District Court
McLennan County, Texas
Trial Court # 89-794-C
*
file:///C|/Users/Peter/Desktop/opinions/PDFs1/156.html[8/20/2013 7:05:02 PM]

O P I N I O N
*
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
file:///C|/Users/Peter/Desktop/opinions/PDFs1/156.html[8/20/2013 7:05:02 PM]

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
file:///C|/Users/Peter/Desktop/opinions/PDFs1/156.html[8/20/2013 7:05:02 PM]

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.
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
Do not publish
file:///C|/Users/Peter/Desktop/opinions/PDFs1/156.html[8/20/2013 7:05:02 PM]

Download 156.pdf