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Young v. State

Court of Appeals of Texas, Third District, Austin

July 17, 2019

John S. Young, Appellant
v.
The State of Texas, Appellee

          FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT NO. B-17-0081-SB, HONORABLE MARTIN "BROCK" JONES, JUDGE PRESIDING

          Before Justices Goodwin, Baker, and Triana

          OPINION

          Thomas J. Baker, Justice.

         John S. 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.

         BACKGROUND

         Young 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.

         Besides 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.

         Shortly 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.[1]

         After the police began investigating the circumstances surrounding the creation of the will, Young was charged with the following offenses:

(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 will";
(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"; and
(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."[2]

         At the end of the guilt-or-innocence phase, the jury found Young guilty of all four charges.

         Following 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 ruling.

         DISCUSSION

         Sufficiency of the Evidence

         In his first issue, Young contends that the evidence was insufficient to support his convictions.

         Under a 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).

         In 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).

         When 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 a forgery.

         Under 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).

         When 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.

         Alternatively, 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.

         Besides 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.

         Scott 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."

         In 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 account.

         Further, 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.

         Consistent 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.

         Testimony 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.

         Hernandez 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.

         Additionally, 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.

         In 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 "suspicious circumstances").

         For these reasons, we overrule Young's first issue on appeal.

         Testimony of Zapata

         In his 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.[3] 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 case."[4]

         Article 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).

         As set 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).

         Also, 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).

         Finally, 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.

         For all of these reasons, we must conclude that the district court did not abuse its discretion by denying the motion for continuance.

         Accordingly, we overrule Young's second issue on appeal.[5]

         Jury Argument

         In his 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, Article 44.04.
[Young]: And we also ask that the jury be instructed to ...

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