Roger Liverman v. State
2014 Tex. App. LEXIS 11249
| Tex. App. | 2014Background
- On July 22, 2008, Roger Liverman filed a mechanic’s lien affidavit claiming $45,000 in labor/materials on property owned by Katheryn Payne.
- The State indicted Liverman under Tex. Penal Code § 32.46(a)(1) for securing execution of a document by deception, alleging he caused Cynthia Mitchell (Denton County Clerk) to “sign or execute” the affidavit.
- At bench trial, the county clerk testified about her ministerial duties: accepting documents that meet recording requirements, entering data, taking payment, and recording documents.
- The clerk filed and recorded Liverman’s affidavit and affixed a court-created cover sheet bearing her signature attesting the filing/recording. The affidavit attached to the indictment did not include that cover sheet.
- The trial court found Liverman guilty; he pleaded true to an enhancement and received ten years’ confinement (suspended) and ten years’ community supervision. Liverman appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence proved Liverman caused the county clerk to “sign or execute” the mechanic’s lien affidavit under § 32.46(a)(1) | Liverman: filing/recording by the clerk is not "sign or execute," so the State failed to prove the element | State: the clerk’s signature on the court-created cover sheet and her filing/recording put the affidavit in final legal form and satisfies "sign or execute" | Court: Reversed — "sign or execute" does not include ministerial filing/recording; cover sheet signature not charged in indictment; insufficient evidence; judgment of acquittal rendered |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency review)
- Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App.) (application of Jackson standard in Texas)
- Tibbs v. Florida, 457 U.S. 31 (relief when evidence insufficient requires acquittal)
- DeWitt v. Harris County, 904 S.W.2d 650 (canon that different statutory language carries different meanings)
- Byrd v. State, 336 S.W.3d 242 (variance between indictment and proof can be failure of proof)
- Boykin v. State, 818 S.W.2d 782 (give effect to plain statutory meaning)
- Sosa v. Alvarez-Machain, 542 U.S. 692 (different words in statutes imply different meanings)
- Greene v. Massey, 437 U.S. 19 (remedy when conviction reversed for insufficient evidence)