Court of Appeals of Texas, Third District, Austin
John S. Young, Appellant
The State of Texas, Appellee
THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL
DISTRICT NO. B-17-0081-SB, HONORABLE MARTIN "BROCK"
JONES, JUDGE PRESIDING
Justices Goodwin, Baker, and Triana
J. Baker, Justice.
Young was charged with two counts of forgery, one count of
theft, and one count of money laundering. See Tex.
Penal Code §§ 31.03, 32.21, 34.02. The jury found
Young guilty of all four charges, and Young's punishment
was assessed at 730 days in a state jail facility for both
forgery charges and eleven years in prison for the theft and
money laundering charges. See id. §§
12.32, .33, .35. In five issues on appeal, Young contends
that the evidence is insufficient to support his convictions,
that the district court erred by refusing to continue the
trial until an alleged co-conspirator could testify, that the
State made improper jury arguments and failed to disclose
evidence, and that his trial attorneys did not provide
effective assistance of counsel. We will affirm the district
court's judgments of conviction.
was John Sullivan's criminal attorney on
possession-of-child-pornography and solicitation-of-a-minor
charges. After Sullivan was arrested on those charges, he
hired Ray Zapata and Armando Martinez, local bail bondsmen,
to help secure his bond. After Sullivan was bonded from jail,
Zapata introduced Sullivan to Young.
helping to secure Sullivan's bond, Zapata agreed to drive
Sullivan around, to perform errands for him, and to monitor
him. Approximately two months after Sullivan was released
from jail and after Sullivan met Young, Zapata drove to
Sullivan's home and knocked on his door, but Sullivan did
not answer. When Zapata returned a few hours later, Sullivan
still did not answer the door, and Zapata called Martinez for
help. After Martinez arrived, he went into the home through a
window. Once inside, Martinez found Sullivan's deceased
body in the bathroom and then called the police. While at
Sullivan's home, Zapata took a religious book that
belonged to Sullivan.
thereafter, Young's friend and former employee, attorney
Chris Hartman, cut two pages out of Sullivan's book that
contained a holographic will ostensibly written by Sullivan
and filed the will with the probate court. The will named
Young as the sole beneficiary of the estate. Following a
hearing, the probate court issued an order admitting the
holographic will as a muniment of title and bequeathing all
of Sullivan's sizeable estate to Young.
the police began investigating the circumstances surrounding
the creation of the will, Young was charged with the
(1) encouraging or directing or aiding or attempting "to
aid another" "with intent to defraud or harm"
"to make or complete or execute a writing, namely: a
will, that purported to be the act of . . . Sullivan, who did
not authorize the act of writing said will";
(2) encouraging or directing or aiding or attempting "to
aid another" "with intent to defraud or harm"
"to pass or publish to" the probate court "a
forged writing, namely: a will, knowing such writing to be
forged, and such writing had been made or completed or
executed such that it purported to be the act of . . .
Sullivan, who did not authorize the act of writing said
(3) unlawfully appropriating, "by acquiring or otherwise
exercising control over, property, namely: money or real
property, of the value of $200, 000 or more, from the Estate
of . . . Sullivan or from any heirs of . . . Sullivan, the
owner thereof, without the effective consent of the owner,
and with intent to deprive the owner of the property";
(4) knowingly transferring "the proceeds of criminal
activity, namely: a check written to . . . Hartman for $167,
500 which was proceeds derived from the theft from the Estate
of . . . Sullivan or theft from any heirs of . . . Sullivan,
and the value of the proceeds was $100, 000 or more but less
than $200, 000."
end of the guilt-or-innocence phase, the jury found Young
guilty of all four charges.
his convictions, Young filed a motion for new trial. After
convening a hearing and considering the parties'
arguments, the district court denied the motion and issued
findings of fact and conclusions of law supporting its
of the Evidence
first issue, Young contends that the evidence was
insufficient to support his convictions.
legal-sufficiency standard of review, appellate courts view
the evidence in the light most favorable to the verdict and
determine whether "any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt." Jackson v. Virginia, 443
U.S. 307, 319 (1979). When performing this review, an
appellate court must bear in mind that it is the
factfinder's duty to weigh the evidence, to resolve
conflicts in the testimony, and to make "reasonable
inferences from basic facts to ultimate facts."
Id.; see also Tex. Code Crim. Proc. art.
36.13 (explaining that "jury is the exclusive judge of
the facts"). Moreover, appellate courts must
"determine whether the necessary inferences are
reasonable based upon the combined and cumulative force of
all the evidence when viewed in the light most favorable to
the verdict." Hooper v. State, 214 S.W.3d 9,
16-17 (Tex. Crim. App. 2007). Furthermore, appellate courts
presume that conflicting inferences were resolved in favor of
the conviction and "defer to that determination."
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007). Courts must bear in mind that "direct and
circumstantial evidence are treated equally" and that
"[c]ircumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor" and
"can be sufficient" on its own "to establish
guilt." Kiffe v. State, 361 S.W.3d 104, 108
(Tex. App.-Houston [1st Dist.] 2011, pet. ref'd).
reviewing the legal sufficiency of the evidence supporting a
conviction, appellate courts consider "all evidence that
the trier of fact was permitted to consider, regardless of
whether it was rightly or wrongly admitted." Demond
v. State, 452 S.W.3d 435, 445 (Tex. App.-Austin 2014,
pet. ref'd). The evidence is legally insufficient if
"the record contains no evidence, or merely a
'modicum' of evidence, probative of an element of the
offense" or if "the evidence conclusively
establishes a reasonable doubt." Kiffe, 361
S.W.3d at 107 (quoting Jackson, 443 U.S. at 320).
presenting this issue on appeal, Young contends that the
money-laundering charge "is facially derivative
from" the theft charge and that both of those charges
are "impliedly derivative from" the two forgery
charges. Building on this premise, Young urges that "if
the evidence is insufficient to demonstrate either that (1)
the will was a forgery, or (2) that . . . [he] knew it was a
forgery, then" all four judgments of conviction
"must be reversed and this Court must render"
judgments "of acquittal." For the purpose of
resolving this issue on appeal, we will assume without
deciding that Young's proposition is correct and will
consider whether the evidence is sufficient to establish that
the will was a forgery and that Young knew that the will was
the Penal Code, "'[f]orge' means . . . to alter,
make, complete, execute, or authenticate any writing so that
it purports: (i) to be the act of another who did not
authorize that act; (ii) to have been executed at a time or
place or in a numbered sequence other than was in fact the
case; or (iii) to be a copy of an original when no such
original existed" or "to issue, transfer, register
the transfer of, pass, publish, or otherwise utter a writing
that is forged within the meaning" set out in the first
portion of the definition. Tex. Penal Code § 32.21.
Moreover, a "person commits an offense if he forges a
writing with the intent to defraud another."
Id. § 32.21(b). "Intent to defraud or harm
may be established by circumstantial evidence,"
Leroy v. State, 512 S.W.3d 540, 543 (Tex.
App.-Houston [1st Dist.] 2016, no pet.), including "the
conduct of the" defendant, Guevara v. State,
152 S.W.3d 45, 50 (Tex. Crim. App. 2004).
challenging the sufficiency of the evidence pertaining to
whether the will was forged, Young concedes that the State
presented evidence suggesting that the handwriting in the
document at issue did not belong to Sullivan, but Young
contends that the evidence came from "marginally
competent lay witnesses" and from "an inconclusive
expert report." More specifically, Young notes that the
State called Sullivan's former attorney Joe Hernandez and
Sullivan's half sister Louise Chabot to testify about the
handwriting found in the will, but Young contends that the
witnesses' familiarity with Sullivan's handwriting
was "stale" because Hernandez represented Sullivan
in a legal matter several years before the events in question
and because "Sullivan had cut off contact with . . .
Chabot nearly fifteen years" before the will was made.
Similarly, Young notes that Sarah Pryor testified as a
handwriting expert for the State, but he contends that
Pryor's testimony was generally inconclusive regarding
who wrote the will and that she could not identify or
eliminate any individual as being the author of the will or
as the person who signed Sullivan's signature.
Additionally, Sullivan's financial advisor, Greg Estes,
testified that the signature in the will looked like it was
Sullivan's writing and that the signature appeared
similar to the signature on a prior holographic will that
Sullivan wrote before having surgery years earlier.
Furthermore, Sullivan's friend, Jean Bundrant, testified
that the directives in the will naming Young as a beneficiary
were consistent with statements Sullivan made months earlier
about his estate.
Young asserts that even if the will was forged, the evidence
was insufficient to establish that he knew the will was
forged. When presenting this argument, Young contends that
the State's case rested on speculation that he conspired
with Zapata to forge the will and that he directed Zapata to
perform tasks in furtherance of that plan. Stated
differently, Young argues that there is no evidence
suggesting "any kind of conspiracy" or
"pointing to . . . Young as having a mental state in
which he viewed the will as anything other than . . .
Sullivan's last wishes." Accordingly, Young urges
that his conduct as it pertained to probating the will and
obtaining title to the assets in the estate were not
indicative of any belief that the will was forged. Moreover,
Young testified during trial that he was unaware of the will
until Hartman told him about it, that he believed that
Sullivan wrote the will, and that the writing in the will
looked like Sullivan's. Further, Young called several
witnesses to the stand who testified that Young was very
surprised when he found out that he was named as a
beneficiary in Sullivan's will.
the evidence Young highlighted, other evidence was also
presented during the trial. Texas Ranger John Hanna testified
that the will contained multiple grammar and spelling errors
as well as factual mistakes. Chabot testified that Sullivan
was an educated man who knew how to write well and liked to
use Latin phrases and that the writing in the alleged will
did not look like Sullivan's writing because it was
printed rather than cursive, because it did not contain Latin
phrases, because all of the "I's" were written
in lower case even when inappropriate, and because the
signature did not look like Sullivan's regular signature.
Quinn testified that he was friends with Sullivan, that the
directives in the will were inconsistent with Sullivan's
previously expressed "after-death wishes," and that
the will did not look like Sullivan's writing because it
did not contain Latin phrases and had spelling and grammar
errors. Tracy Manning, who regularly engaged in real-estate
transactions with Sullivan, as well as Hernandez and Martinez
all testified that the handwriting in the will did not match
Sullivan's. Moreover, Hernandez and Zapata's
long-time friend Juan Marquez both testified that the
handwriting looked like Zapata's. In addition, Marquez
and Hernandez testified that Zapata often misspelled words
and had poor grammar. Further, the State's handwriting
expert, Pryor, testified that she examined the handwriting in
the will, that she compared that writing with known writing
samples from Sullivan and Zapata, and that she concluded that
there were "indications" that Sullivan did not sign
the will or write the contents of the will and that
"Zapata may have written the extended portion of
the" will. Pryor also testified that "Sullivan had
a high skill level" for writing, that Zapata "had a
moderate skill level" for writing, and that the will was
written by someone with a "moderate skill level."
addition, as set out earlier, the alleged will made Young the
sole beneficiary of Sullivan's estate even though
Sullivan and Young had only met two months before Sullivan
died. The alleged will also specified that it was created two
days before Sullivan was found dead and that Zapata witnessed
the writing of the will. Although Estes testified that the
signature in the will looked like Sullivan's, he also
admitted that Young transferred an investment account worth
more than $1 million to him so that he could manage the
Martinez testified that after he found Sullivan's body,
he told Zapata that they needed to call the police but that
Zapata took a photo of the body instead, called Young
multiple times, and sent the photo of the body to Young.
Martinez explained that he told Zapata that they should leave
the scene but that Zapata told Martinez while he was on the
phone with Young to "wait; we can't go just yet.
Give me a little time. I've got to find a document with .
. . Sullivan's signature on it." Further, Martinez
related that after Zapata talked with Young, Zapata took one
of Sullivan's religious books before the police arrived.
with Martinez's testimony, the records for Young's,
Zapata's, and Hartman's phones for the time shortly
after Sullivan's body was discovered documented that
there were fifteen phone calls between Young and Zapata,
eight phone calls between Young and Hartman, and seven phone
calls between Zapata and Hartman. The records also showed
that a few minutes after Martinez called the police, Young,
Hartman, and Zapata were all on a conference call together.
was presented at trial indicating that on the day after
Sullivan was found, Hartman filed the alleged holographic
will written in Sullivan's book, and both probate court
clerks testified that Hartman seemed nervous when he filed
the will. Additionally, Hartman filed on behalf of Young an
emergency application to cremate Sullivan's body just a
few days after Sullivan was found. Moreover, Young and
Hartman both testified that Young was concerned about being
able to collect legal fees from Sullivan's estate.
Hartman also testified that Young instructed him to probate
the will in the quickest and least expensive way possible.
testified that Young told him that Young's "good
friend" Zapata witnessed Sullivan prepare the will.
Hernandez further testified that after he told Young that
Sullivan had a sister, Young responded by repeatedly stating,
"you didn't say that, Brother, I didn't hear
that" before walking away. Furthermore, Martinez
explained in his testimony that when he later questioned
Zapata about the authenticity of the will, Zapata could not
look him in the eye.
evidence was presented during trial that in the seven months
after Sullivan died Young spent over one million dollars of
the money that he obtained from Sullivan's estate.
Further, the evidence at trial showed that Young wrote a
check to Hartman for $167, 500 from the proceeds of
Sullivan's estate, that Hartman subsequently gave Zapata
a check for $65, 312.50 that did not specify for whom the
check was written, and that Zapata gave Marquez the check
with Marquez's name filled out on the check. Moreover,
Marquez placed the funds in his IOLTA account but changed the
address for the account to Zapata's address. Finally,
Zapata ordered checks and a signature stamp with
Marquez's signature on it and wrote multiple checks from
the IOLTA account to himself or on his behalf.
light of our standard of review and given the evidence
regarding the circumstances in which the will was allegedly
discovered, the will's purported creation within two days
of Sullivan's death, the will's naming of Young as
sole beneficiary even though Sullivan had only known Young a
few months, and the unusual behavior of the individuals
involved as well as the evidence indicating that the
handwriting in the will was not Sullivan's, a jury could
reasonably determine beyond a reasonable doubt that the will
was a forgery and that Young was aware that the will was a
forgery. Cf. Leroy, 512 S.W.3d at 544 (determining
that evidence was sufficient to support jury determination
that defendant knew that check was forged based on
these reasons, we overrule Young's first issue on appeal.
second issue on appeal, Young contends that the district
court erred by failing to grant his motion asking the court
to "continue the trial until alleged co-conspirator . .
. Zapata would be available to testify." In his motion
to continue, Young noted that Zapata was "invoking his
5th Amendment privilege" while "his case is
pending" and, accordingly, asserted that the trial
should be postponed because Zapata was unavailable to
testify. As support for his request, Young attached a
"sworn proffer" from Zapata's attorney stating
that Zapata would provide exculpatory evidence but could not
currently do so because his conviction had not yet become
final. See Harston v. State, 59 S.W.3d 780, 784
(Tex. App.-Texarkana 2001, no pet.) (explaining that motion
for continuance "must have the affidavit of the missing
witness or a showing under oath from some other source that
the witness would have actually testified to such
facts"). More specifically, Zapata's attorney stated
that he believed that Zapata would testify that he found the
alleged will in Sullivan's book, that he read the
contents of the will, that the will left all of
Sullivan's estate to Young, that Young did not ask Zapata
"to forge" the will, and that Young "had no
knowledge" of the will until he was informed by Zapata
or Hartman. In light of the preceding, Young urges thi
Court "to vacate the judgment of conviction and remand
this case for trial to commence not earlier than the date of
finality of co-defendant Zapata's
29.03 of the Code of Criminal Procedure provides that
"[a] criminal action may be continued on the written
motion of the State or of the defendant, upon sufficient
cause shown; which cause shall be fully set forth in the
motion. A continuance may be only for as long as is
necessary." Tex. Code Crim. Proc. art. 29.03. "The
granting or denying of a motion for continuance is within the
sound discretion of the trial court." Renteria v.
State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006).
Accordingly, "[w]e review a trial court's ruling on
a motion for continuance for abuse of discretion."
Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App.
2007). Under that standard, a trial court's ruling will
only be deemed an abuse of discretion if it is so clearly
wrong as to lie outside "the zone of reasonable
disagreement," Lopez v. State, 86 S.W.3d 228,
230 (Tex. Crim. App. 2002), or is "arbitrary or
unreasonable," State v. Mechler, 153 S.W.3d
435, 439 (Tex. Crim. App. 2005). In the circumstances present
here, "[t]o establish an abuse of discretion, there must
be a showing that the defendant was actually prejudiced by
the denial of the motion." Splawn v. State, 160
S.W.3d 103, 108 (Tex. App.-Texarkana 2005, pet. ref'd).
out above, Young included Zapata's lawyer's affidavit
specifying what the lawyer believed that Zapata would testify
to if given an opportunity. During a pretrial hearing on the
motion, the district court admitted into evidence transcripts
offered by the State of testimony given by Zapata at three
prior related proceedings that contradicted many of the
statements in the affidavit from his lawyer. For example,
Zapata repeatedly testified that he did not read the contents
of Sullivan's book or the will before handing the book to
Young and that he never opened the book. Cf. Williams v.
State, 625 S.W.2d 769, 771 (Tex App.-Houston [14th
Dist.] 1981, pet. ref'd) (noting that trial court could
have concluded "that the testimony appellant's
codefendant would offer was patently false" when
determining that trial court did not abuse its discretion by
denying motion for continuance). If the district court had
granted the motion to continue and if Zapata's testimony
was consistent with his lawyer's description,
Zapata's testimony could potentially have subjected him
to impeachment by his prior testimony. See Tex. R.
Evid. 613 (setting out process for questioning witness
regarding prior inconsistent statement).
the length of the continuance needed to secure Zapata's
testimony was unclear. Zapata was convicted shortly before
the trial at issue in this appeal, but "he would not be
free to testify without the fear of self-incrimination"
for the charged offenses "until he had exhausted
all rights to judicial review." See Macias
v. State, Nos. 01-06-00316-00319-CR, 2007 WL 4284857, at
*5 (Tex. App.-Houston [1st Dist.] Dec. 6, 2007, pet.
ref'd) (mem. op., not designated for publication)
(emphasis added). Although this Court recently affirmed
Zapata's conviction, see Zapata v. State, No.
03-17-00537-CR, 2019 WL 2518752 (Tex. App.-Austin June 19,
2019, no pet. h.) (mem. op., not designated for publication),
Zapata may still challenge his conviction by appealing to the
court of criminal appeals. Moreover, the record before this
Court indicates that Zapata may have also invoked his Fifth
Amendment privilege to avoid subjecting himself to a perjury
charge. For that reason, the time needed for a continuance
could seemingly extend indefinitely beyond the time in which
his conviction for the charged offenses has become final.
See Varela v. State, 561 S.W.2d 186, 191 (Tex. Crim.
App. 1978) (explaining that "[i]f the evidence does not
indicate a probability that the witness can be secured by a
postponement, or if it appears that a continuance due to the
absence of the witness would delay the trial indefinitely,
the motion may be properly denied"), superseded by
rule on other grounds as stated in Bodin v. State, 807
S.W.2d 313, 317 (Tex. Crim. App. 1991); see also Deckard
v. State, 953 S.W.2d 541, 544 (Tex. App.-Waco 1997, pet.
ref'd) (noting that State may pursue perjury charge by
showing that defendant's "original testimony was
actually true, and consequently, his later statements
directly contradicting this truthful testimony must
necessarily be false"). Further, although Zapata's
attorney provided a statement regarding what he believed
Zapata would testify to, because Zapata "affirmatively
invoked his Fifth Amendment rights, 'it would be mere
speculation to conclude that the proposed testimony by the
codefendant would have been of such weight and believability
as to influence the decision of the jury.'" Cf.
Macias, 2007 WL 4284857, at *5 (quoting
Williams, 625 S.W.2d at 771).
to the extent that Zapata's attorney's statement
indicates what Zapata would have actually testified to, we
note that Young introduced similar evidence through various
witnesses testifying that it was Sullivan's intent to
leave his estate to Young, that Young believed the will to be
a valid one made by Sullivan, that Young was surprised by the
contents of the will, and that Young was an honest person.
of these reasons, we must conclude that the district court
did not abuse its discretion by denying the motion for
we overrule Young's second issue on appeal.
third issue on appeal, Young contends that the district court
erred by failing to grant his motion for new trial on the
ground that the district court should have granted his
request for a mistrial after the State allegedly made
"improper argument before the jury" during the
punishment phase by "informing the jury as to the
availability of an appeal bond." The relevant exchange
referenced by Young reads as follows:
[State]: And my single recommendation that I will give to you
is that the floor for your consideration be 10 years. The
reason for that is that any sentence 10 years or more-or any
sentence less than 10 years will cause the Defendant to be
released on an appeal bond pending resolution of this case.
[Young]: Your Honor, I object. He's arguing outside the
law that this jury has been charged with. This is improper.
Arguing outside the law.
[District Court]: Sustain the objection.
[State]: It's the Code of Criminal Procedure, Your Honor,
[Young]: And we also ask that the jury be instructed to