*4 mit a credit to the remarketer LEE, O’NEILL, Before YATES and JJ. then forwarded to ICC. After con- ducting assessing a credit check and MAJORITY OPINION *5 default, perceived of amount of risk ICC would inform the of the remarketer lease YATES, Justice. deposit rate the amount and needed to Appellants individually charged were customer, the lease. initiate Where the usu- engaging the offense of crime. business, ally a small was so new it had no § Appellants 71.02.1 Tex. Penal Code Ann. history, typically require credit ICC would a pleas guilty entered of not tried in were deposit equivalent pay- months three lease joint jury. a trial a before The found approved appli- the ments. Once ICC credit appellant guilty orga- each of engaging in cation, give money would it the needed to nized crime as the indictments. fund the lease to the remarketer. The re- punishment The assessed for Harold provided by was to marketer use the funds Crum, Bond, and Daina at Wilburn computer purchase ICC to the hardware and years probation $10,000 ten and a Rob- fine. complementary provide the services re- Munkatchy’s punishment ert at assessed customer, by quested the customer. The years $10,000 prison five and a Gar- fine. end-user, payments would then make lease ry Wilburn years pro- was sentenced to ten ICC. $10,000 bation and a fine for count one and appellants, The evidence shows years prison $10,000 five and a fine for the ComTec, through this abused value-added points second count. In fifteen First, program ways. lease in two ComTec (1) appellants challenge sufficiency the computers under-capitalized sold busi- (2) convictions; to support evidence their the money comput- nesses in need of instead of indictments; (3) (4) jury; the words, help ers. In other ComTec would the the trial of Munkatehy’s court’s denial financing obtain lease from businesses ICC severance; Daina Wilburn’s motions for ComTec, by deposit paying the on the lease. (5) the of hearsay admission statements turn, purchased computer hardware that by Munkatchy against made Daina Wilburn. company did not the need. ComTec then affirm.
We money complemen- took the obtained for the tary it to the custom- services “rebated” FACTUAL BACKGROUND purpose get- er. This scheme served the employees ting giving were or affiliates new customers for ComTec and Services, Computer an IBM re- ComTec new businesses a loan. If the business computer faded, industry, marketer. a “re- bore the ICC loss. fore, penal The code crimes for which were convict- all references to the are September ed were committed before code effect at the time the crimes was commit- penal revised See the effective date of the code. ted. 1.18(b). Leg., § 73rd Ch. There- Acts began together to ob- way value- and Sutterer to work second ComTec abused the
The program financing businesses lease was to create fictitious tain for small added scheme, pur- through companies. In this ComTec ICC. Sutterer testified most computers, up computer did not install more chased the but the customers ended with money complementary they for ser- equipment them. than needed so could Munkatchy high- account held in get charged was transferred to an vices the cash. the name of business customer. price computers the fictitious that IBM est would Eventually, company defaulted pointed the fictitious out that he allow. When customer again leaving payments, on the lease ICC Munkatchy computer cheaper, get could Marshall, manager with the loss. Paul “always point of cash.” came back to the ICC, at customer financial services estimated meet Several small businesses that from these schemes at be- loss ICC qualifica- financing financing bank or SBA twelve and fourteen million dollars. tween approved by testi- tions ICC. Sutterer Bond fied that Daina and James Wilburn discovery led Several events salespersons as were listed several ICC first became concerned when it fraud. applications to ICC. sent deposit checks were noticed some customers, not written but ComTec. records reveal that Charter Bank’s Next, meeting Mun- at between Robert provided needed Wilburn the escrow katchy, repre- President of ComTec ICC company Equipment. named A-l fictitious sentatives, Munkatchy proposed ICC of- as owner of A-l James Bond was listed financing capital part fer of its venture Equipment. Garry a check Wilburn wrote capi- start-up companies most because need McCorp an account to cover the escrow Mun- representative tal. An ICC informed Equipment.2 The total amount of for A-l *6 monetary katchy provide did not ICC $137,188. by funded ICC was Of the lease loans. amount, $53,912 designated for this was $83,271 designated for hardware and was default- the first ComTec customer When deducting complementary After services. ed, attempted to recover the unused ICC all price equipment designated complementary money for ser- by complementary rendered Com- services given ComTec had vices. ICC learned that Tec, Steinmetz, bookkeep- ComTec’s Pamela money directly to customer in lieu of er, Equipment to A-l for issued check complementary IBM auditors services. $77,150. by That was endorsed James check twenty-three learned that later between Bond. testified that the rec- Ms. Steinmetz ficti- thirty-five of customers were ComTec’s equipment was left at the ords show that the Paul that 85% of tious. Marshall testified up by Bond. picked front desk to be James ComTec’s customers defaulted their lease equipment if know the Steinmetz did not payments. ever installed. Specific instances of theft she Ms. further testified that Steinmetz Sutterer, loan ad- Horace a small business money cus- frequently advanced escrow ministrator, Munkatchy con- testified that Munkatchy’s Daina tomers at Wilburn's through him an Sutter- tacted advertisement Munkatchy told stated that direction. She placed. er had Sutterer had certain clients money from the her deduct the escrow financing could meet the that needed but money complementary received services (SBA) guide- Small Business Administration from ICC. Munkatchy that if the busi- told him
lines. in a participated fraudulent telephone had a number and needed to Harold Crum ness June, Company. get lease H.T.C. purchase computer equipment, he could money to H.T.C. per provided escrow company up in cash dollar of ComTec $1.75 2,1990, Company Munkatchy Company. July H.T.C. On computer equipment ordered. appears for Garry opened McCorp checking to have been used escrow account Wilburn provid- deposit stop writing with a account June after asked ComTec to checks IBM by of So- ed C.L. Cook from funds in account escrow checks. Tex, Inc., McCorp Munkatchy's company. The $16,989. Enterprises they wrote an escrow check to ICC for friends to G.C.S. Company lease, writ- signed up
The H.T.C. escrow check was an IBM for would by ten Harold Crum. ICC then funded a twenty thirty receive thousand dollars in Company finance account for lease H.T.C. that he overheard cash. Claus also testified $226,310, $94,272 the amount of which Wilburn, Crum, Garry Daina and Harold equipment for and the remainder was dedi- Gilbert, discussing Springer John and Mr. complementary cated for services. After making up company names.
making equipment, deductions for the one maintenance, year’s money the escrow OF THE SUFFICIENCY EVIDENCE advanced, had been and a other inciden- few In their first items, $104,- tal H.T.C. received a check for support claim the evidence is insufficient to 537.50. The file contains a from letter Com- because the failed to their convictions Tec written Daina to Harold Wilburn people that all eleven named in the Company Crum at H.T.C. in which ComTec application paragraph charges agreed purchase unspecified equipment participants of or crimi were members $141,990, Company from H.T.C. out of nal combination. were indicted proceeds paid by the lease ICC to ComTec. Code, section 71.02 of the Penal under which However, payment no was made ComTec person engages states that a equipment and no was delivered H.T.C conspires crime if he commits or to commit Company. participating in a enumerated offenses while John Gilbert car owned two used busi- combination. A combination is defined as nesses called Three G Brokers and I-Jon persons “three or more who collaborate in Enterprises. April In March or carrying on criminal activities[.]” Tex. Pe Wilburn, Wilburn, Garry Daina Harold 71.01(a) (Vernon 1994). § nal Code Ann. Crum, George approached Thurman Gil- underlying appeal indictments this bert discuss a “venture IBM.” Thur- persons the names eleven who computer man told Gilbert he could lease combination, namely, were members of the equipment and receive a substantial amount Wilburn, Munkatchy, money process. was told it Gilbert Cook, Bond, George C.L. money get
would cost him no involved *7 Thurman, Gilbert, Tovey, John Ha Charles program; just place computer the he would Crum, Pennington, rold Rita Robert company order under one of his names and Pennington. Gilbert, Crum, would receive cash. Springer operated under the name of G.C.S. Appellants raise the issue of whether the Enterprises. proof by State increased its burden of its use conjunctive “and,” of
Leonard
the
instead of the dis
signed
Claus testified that he
junctive “or,”
charging paragraph.3
in the
equipment
leases for IBM
on behalf of John
State,
relying
Appellants,
Ortega
v.
668
company
Gilbert under Gilbert’s
names. He
companies
(Tex.Crim.App.1983),
further
testified that
701
and Fee v.
the
never
S.W.2d
computer equipment.
(Tex.Crim.App.1992),
used the
Claus testi-
to the
it
charge
only require
people
reading of the
would
the
establishing
that all eleven
burden
jury
appellant participated in a combi-
in the
to find
named
indictment
members
Because, by
including at
of the other
its
admis-
nation
least two
the combination.
own
charge,
sion,
persons named in the
the
prove
people
the
six of
fifteen
State did not
the
combination,
did not ele-
Jones court concluded the State
named were members
prove
all those listed
argue
vate its burden
that
the evidence
insufficient
participated in the combination. Id.
support their convictions.
examining
the
responds
The State
language
charge
The
in the
before
considering
charge as a
the statu-
whole
charge.
How
us is not identical
Jones
in the
tory definition of combination included
ever,
charge
repeat
of this
the
the failure
jury
charge,
required
it is
clear the
application
in the
definition of combination
only
persons
more of
find
three or
the
charge’s mean
paragraph neither affects the
participated in
listed
the combination.
ing
proof.
nor increases the State’s burden
statutory
charge
jury
tracked the
definition
unnecessary
repeat
It is
and unworkable
jury
of “combination” and instructed the
every
definition in the
abstract
prosecution
it is not a defense to
that “one
See,
e.g.,
paragraph.
Dinkins
more members of the combination are not
cert. de
(Tex.Crim.App.1995),
S.W.2d
—
criminally responsible
object
for the
of-
-,
nied,
U.S.
116 S.Ct.
§ 71.03.
fense[.]” See Tex Penal Code Ann.
(1995) (jury charge not defective
L.Ed.2d 59
culpable
appli
in
which omitted
mental state
nearly
in the
language
Faced with
identical
given
cation
where
in
paragraph
definition
charge,4
Appeals
the First Court of
charge).
we
portion
abstract
Because
find
concluded
State was
the
correct,
analysis by
the
the First
to be
Court
charge
listed in
person
that each
holding
in
we will follow
Jones.5
participated
appellant.
a combination
(Tex.
Jones
Further,
by appel-
upon
the eases relied
refd).
1995, pet.
App.
Fee,
Dist.]
charge
[1st
distinguishable.
lants are
— Houston
case,
present
the term
convict,
As
expressly instructed that in order to
statutory
charge tracked the
in the Jones
appellant
all six other
must find
penal
set
As
definition
out
code.
con-
the indictment
individuals
case,
present
application paragraph
spired
theft with
to commit
did commit
the names of the other
listed
to facilitate
of a combina-
intent
the aims
conjunc
Fee,
The insuffi-
members
the combination
tion.
directly in than In third and fourth of to customers rather their goods is insuffi being provision appellants used in the of and claim the evidence they to that intended “to estab services. But ComTec was neither cient lish, participate in a combina- charged with nor convicted of that offense. maintain and theft, combination,” activity by committing the indict profits and nal tion and of a (1) “pursuant allege scheme that acted to one and that the defendant: ment must conduct,” alleged continuing course chapter 31 of Pe theft under committed Appellants argue there is the indictments. Code, (2) to and so with intent nal did together Munkatchy that no evidence worked establish, maintain, participate a combi remaining that appellants with the profits or in the of a combination. See nation sepa- anything than transactions were other (Tex. Duke, 467-68 rate and distinct financial transactions. Munkatchy in Crim.App.1993). and Crum’s assertions, Contrary state, to the evi- part: pertinent dictments organized that it dence reflects was the acts Jury duly organized Grand Harris which ICC and appellants all deceived Texas, County, presents in the District ultimately such finan- caused a tremendous Texas, County, that of Harris Court company. to the ICC believed it cial loss Texas, County, appellant], [the Harris funding many to busi- leases different Defendant, styled hereafter unlaw- belief, perpetuate To this ness entities. establish, fully maintain with intent to Wilburns, Crum, Gilbert, creat- Springer and and in participate in a combination business The bank rec- ed fictitious entities. combination, said profits combina- flowing numerous between ords show checks consisting Munkatchy, Dai- of Robert tion testimony corporations. The the fictitious Wilburn, Cook, Garry C.L. na Munkatchy intended deceive shows Thurman, Bond, George Charles compa- by issuing checks from different ICC Crum, Gilbert, Tovey, Harold John Reviewing the evi- as escrow checks. nies Pennington, Pennington, and Rita commit jury’s light most dence in the favorable felony twenty over of theft verdict, fact offense we find a rational trier of could dollars, appellants pursuant acted and in have found thousand furtherance of continuing activity, course of conduct organized [ap- one scheme said criminal said establish, maintain, participate on or about and be- pellant], heretofore profits and in the of a combina- 15,1990 September February tween points Appellants’ third and fourth tion. pursuant to one scheme continu- are overruled. error conduct, ing course of did then and there unlawfully appropriate, acquiring and INDICTMENTS exercising property, over control otherwise eleven, through points of error five money, namely, total value of the and the complain alleged various defects more than property so obtained was twen- prelimi As a their individual indictments. dollars, by IBM ty owned thousand Credit matter, failing nary note to file we styled the Corporation, Com- hereafter quash, James Bond and motions deprive the plainant, with Com- intent regard preserve Wilburn failed to error with added). (emphasis plainant property, in the indictments. See Tex. defects 1.14(b). Further, AnN. acting art. “in further- Appellants contend Code Crim. Proc. through regard points five of error organized activity” of said criminal does ance error preserve Daina Wilburn failed to eight, provisions of section 71.02. violate in his motion failing to raise those issues words, appellants claim the substitution other quash. orga- phrase “in furtherance of said activity” of- nized criminal stated different error, appel fifth point In their charged under section fense than offense failed to state an lants claim indictments clear, however, phrase that the It is 71.02. 71.02(a)(1)of the Texas offense under section “in furtherance of said because indictments Penal Code activity” previous use refers to the orga purported thefts “furthered” that the *10 establish, maintain phrase, “with intent activity. For an indictment to nized criminal participate in a prosecution in under section sufficient a be 71.02(a)(1), profits of a engaging organized in crimi- combination.”
359 of conspired that a to commit one phrase “with intent to estab defendant offenses, lish, it must also show that the de- participate maintain and in a combina agreed persons one or more in fendant with profits tion and of a combination” such, and that the and, commit the offense defendant clearly meaning has technical act with at least one committed an overt may not be omitted from the indictment. (Tex. agreement. person pursuant other to that 383, Kinsey, v.
State 861 S.W.2d 384 71.01(b) (Vernon § necessary Tex. Crim.App.1993). It is not to use Ann. Penal Code 1994). hand, On the other when language defining the exact of the statute committed, rath- alleges that a defendant has charged, offense but substituted words must commit, conspired to one of the er than has convey meaning or the same include offenses, requirement is no enumerated there statutory phrase sense of the word. Id. The allege that it or the existence of organized “in furtherance of said criminal Duke, 865 at 468. overt acts. See S.W.2d activity” was used as a substitute for the allege that appellants’ Because indictments establish, phrase “with intent maintain and specific appellant each committed offense participate prof in a in combination and theft, plead of the State was not its of a combination.” The indictment prove any eighth Appellants’ overt acts. language appropriate tracked of sub point of is overruled. error 71.02, thereby adequately sections of section charging appellants orga with the offense of error, point ap In their ninth State, activity. Clayton criminal nized See v. pellants pro failed to claim the indictments 950, (Tex.Crim.App.1983), 652 S.W.2d 956 the offense vide fair notice of facts of denied, 1046, 104 719, cert. 464 79 U.S. S.Ct. charged. quash A motion to should be (1984). L.Ed.2d 181 The inclusion of the only language concerning granted when the phrase “in organized furtherance of said vague the defendant’s conduct is so or indefi activity” criminal did not render the indict deny him nite as to effective notice of the Appellants’ point ments defective. fifth allegedly DeVaughn acts committed. he error is overruled. (Tex.Crim.App. S.W.2d 1988). error, point timely appellants quash, their sixth To motion to survive indictment, face, allege culpable claim the indictments fail to on its must contain alle in furthering alleged orga- gations necessary mental state of the facts show committed, activity. nized criminal In their seventh the offense was to bar subse error, offense, point appellants quent prosecution claim the indict- for the same allege give precisely ments fail to a “date certain” on which the defendant notice of what review, engaging organized charged Upon the offenses of crimi- we he is with. Id. activity given
nal occurred. Points six and seven if notice is must first determine ended; rely is, appellants’ inquiry contention that the addi- If it our if sufficient. not, phrase
tion of the “in furtherance said the record must be examined deter activity” impact deficiency appel criminal stated a different offense mine the charged than the offense extent. under section 71.02. lants’ defense and its Hillin rejected (Tex.Crim.App. Because we have this contention 1991). five, disposition our of error we points
overrule sixth and seventh complain im it was of error. possible for them to determine what eighth point engaging orga their to commit the offense of activity. organized claim fail al In an their indictments nized case, lege any allege need not “overt acts” committed further crime the State underlying may ance of the combination. A manner and means which the defendant charged engaging crimi committed. See Lucario v. be theft was (1) activity (Tex.App. [1st nal he commits one of the — Houston 71.02, pet.). no Unless a fact is essen Dist.] enumerated offenses listed section (2) notice, plead conspires to tial to the indictment need not commit one the offenses upon by alleges 71.02. If the evidence relied the State. Liv- listed section the State *11 360 (Tex.Crim.App.1987), Chap- episode, as defined in 311, same criminal 739 321
ingston v. S.W.2d denied, 1210, 3 of t. 487 U.S. ter the Penal Code. cer (1988). 2858, L.Ed.2d An 101 895 108 S.Ct. Code, however, of the Penal Section 31.09 language tracks the indictment be that cannot severed. creates one offense legally sufficient and the State statute is Brown, 31.09 at Section 640 S.W.2d merely allege facts that are eviden- need not states: tiary in nature. Id. Because the indictment language of section appropriate tracked are obtained violation When amounts charging adequately appellants with 71.02 to one chapter pursuant this scheme crime, engaging the offense of conduct, from continuing whether course refusing to court did not err in the trial sources, the conduct same or several ninth quash Appellants’ indictments. may be as one offense and the considered point is overruled. of error determining aggregated amounts grade of offense. error, point appel In their tenth Although under 31.09 is made a theft section that the indictments for Robert lants claim theft, up of more incidents Munkatchy and Daina Wilburn fail to two or certain on which the theft offenses offense. Brown v. date statute makes them one against State, 275, The (Tex.Crim.App. committed. indictments were Munkatchy and al 1982). Daina Wilburn provides that an actor statute The by them leged that the thefts committed adopts single “scheme or con pursues a participating in combina while acquiring tinuing of conduct” course “on or and be were committed about tion property in a manner consti or services 1, February September tween theft, felony of a may be convicted tutes he Appellants contend 1990.” the State limit careful to the theft though even he is specific on which required to set forth dates or at each time and from each individual language This suffi the thefts occurred. provi misdemeanor amount. This place to a ciently alleged the date on which the continu rep that the sion reflects the determination place. ing of theft took See Green offense actor, appro and thus rehensibility of an (Tex.App.—Hous 880 S.W.2d sanction, penal necessarily de priate (indictment pet.) -ton no [1st Dist.] single he steals at a termined the amount “pursuant alleged theft was to one scheme Searcy single person. & moment from a continuing course of conduct which be Patterson, Commentary, Tex. Pe Practice February, gan day 24th about statute, fact, § 31.09. The nal Code Ann. until on or the 30th 1990 and continued about incidents of theft into so binds the individual sufficient). January, 1991” found day of offense, is no vehicle which one that there point error is tenth overruled. compel a severance. Leh the defendant can (Tex.Crim. man v. point ap In their eleventh of error the offenses cannot be App.1990). Because pellants contend the indictments for Robert severed, was not to set the State misjoin Munkatchy multi Wilburn paragraphs. forth thefts distinct several if the ple offenses and State intended theft point of error is over Appellants’ eleventh theft, obliged to rely more than one it was ruled. separate paragraph. theft set forth each joined improperly claim the State CHARGE JURY comply failing theft offenses several 21.24(a) of the of Criminal with article Code appel their twelfth 21.24(a) Article states: Procedure. submitting erred lants claim trial court jury in which may joined in a offenses or more be Two paragraph a comment on the contained indictment, information, or com- single In the weight cases of the evidence. sepa- offense stated in a plaint, with each Bond, Wilburn, Garry count, the Daina if the offenses arise out of rate *12 Crum, jury finding first that the and Harold the trial court submitted to convict without following instruction:6 persons listed were members of the combina- Now, you beyond if find from the evidence tion. County, a reasonable doubt that in Harris contention, support their Texas, name], [appellant’s the defendant (Tex. cite Andrews unlawfully did then and there intent application paragraph Crim.App.1983). The establish, participate maintain in a in Andrews reads as follows: profits combination or the of a combina- Therefore, you if believe from the evidence tion, consisting said combination Rob- beyond a reasonable doubt that the defen- Wilburn, Munkatchy, ert Daina dant, Andrews, Wilburn, Cook, Bond, County, in Harris George William C.L. James
Thurman, Gilbert, Texas, Tovey, day August, Charles John on or about the 7th Crum, Pennington, 1980, did, Harold Robert and knowing the content and charac- Pennington, felony Rita commit the of- material, intentionally ter of the sell twenty fense of theft over thousand dol- material, namely Farrell obscene one O.W. lars, organized furtherance of said magazine entitled “Swedish Erotica No. activity, [appellant], criminal said hereto- depicts patently 25” which and describes [date], pursuant fore on or about to one representations actual or sim- offensive conduct, continuing scheme course of intercourse, ulated sexual and oral sod- unlawfully appropriate did then and there omy, you then will find the defendant by acquiring exercising or otherwise con- you If guilty of the offense. do not property, namely, money, trol over and the believe, you if so have reasonable property total value of the so obtained was thereof, you doubt will find the defendant twenty dollars, more than thousand owned added). guilty, (emphasis Corporation, IBM Credit with intent to at Id. deprive Corporation IBM Credit of the property, you then will find the defendant Appeals The Court of Criminal held that guilty engaging organized criminal application paragraph charge elim- activity, charged as in the indictment. key inated from the State’s burden a element you Unless so find from the evidence it had to a valid the offense before doubt, beyond you a reasonable or if have occur, is, conviction could whether the [sic], you a reasonable doubt therof will magazine depicted patently and described of- acquit say by your the defendant and ver- representations fensive of actual or simulated Guilty.” dict “Not intercourse, intercourse, sexual anal and oral added). (emphasis sodomy. Id. at 374. The court further held Appellants emphasized portion contend the subject application paragraph that the prefaced should you have been with “if fur- objections the defendant’s and the trial court language ther find” or indicating some other objection. overruling Id. erred beyond that the must find a reasonable charge in this case does not membership doubt the of the combination. infirmity charge contend the allows suffer from the same as the establish, maintain, charge given Munkatchy’s property, 6. The in Robert case and with intent to substantially participate profits different from his four code- or combination, in a combination or the of a case, Munkatchy’s application fendants. you if further find from paragraph read as follows: beyond a doubt that the al- evidence reasonable leged combination consisted of Robert Mun- Therefore, you if find from the evidence be- Wilburn, katchy, Gariy C.L. yond a reasonable doubt that from on or about Cook, Bond, Thurman, George Charles February September 1990 to on or about Gilbert, Crum, Tovey, John Harold Robert Pen- Texas, defendant, County, in Harris nington, Pennington, you and Rita then will find Munkatchy, pursuant to one scheme and guilty engaging the defendant conduct, continuing course there did then and activity, charged in the indictment. unlawfully appropriate property, namely, money, you beyond $20,000.00, Unless so find from the evidence of the value of more than owned doubt, you Corporation, you reasonable or if have reasonable IBM Credit further find thereof, beyond you acquit doubt will the defendant a reasonable doubt that the defendant Guilty." deprive say by your acted with intent to the owner of the verdict "Not the error. the accused from harm to some In the first sentence Andrews. (Tex. paragraph, the was instruct Almanza required if ed, beyond a A reversal you Crim.App.1984). from the evidence “if find *13 actual, modifies ev rather phrase That has suffered reasonable doubt.” the accused theoretical, Ar from the error. ery subsequent phrase the harm than (Tex.Crim. State, 348, Reading application para the 351 paragraph. v. 721 S.W.2d line whole, separate portion, per graph each burden to App.1986). It is incorpo complained phrase, including they the actual suffered suade this court Thus, charge, phrase. the opening charging the consequence rates of the error. harm as a construed, jury to reasonably requires the so, charging the to do If are unable beyond a reasonable element believe each in a reversal of not result error will words “said The court’s use doubt. v. 871 S.W.2d See Abdnor conviction. as consisting of’ was not an combination 726, (Tex.Crim.App.1994). In determin 732 fact, nor was it a sumption disputed of a reversal, charge requires ing error whether the offense in the comment on an element of assayed in degree of harm must be the actual 267, v. 800 S.W.2d charge. See Collins charge, jury the state light of the entire 1990, no (Tex.App. [14th Dist.] 270 evidence, issues including the contested — Houston twelve is overruled. pet.). Point of error evidence, argu weight probative counsel, in any other relevant ment of error, appel- thirteenth their record of the trial revealed formation defining claim the trial court erred lants Almanza, at 171. as a whole. jury charge. in the the term acts” “overt jury as follows The trial court instructed remainder of light Wilburn, Garry Wil- in the cases of Daina adduced, closing and the charge, evidence burn, Bond, Harold Crum: counsel, persuaded are not arguments of we requires only that a member Texas law definitional in the abstract the error act in perform an overt the combination any contribution charge made portion of the and that he furtherance of the combination “overt acts” jury’s verdict. The term to the establish, maintain, or do so with intent appellants in the any of the applied is not profits or the participate a combination jury charges. of their application paragraphs requirement There is no of a combination. unduly emphasized in the Nor was term along performed that an overt act be Rather, closing argument. prosecutor’s of the combination. all three members case, required to find that each objected inclusion of this theft, offense of appellants committed the definition. higher burden for arguably which created inclusion Accordingly, we find the the State. only applies to “overt acts” The term “overt acts” was of the term of a definition attempts prove the cases where State thirteenth Appellants’ harmless error.7 to commit an enumer conspired overruled. point of error is case, charged In this the State ated offense. of the offense appellants with commission maintain, establish, theft with the intent SEVERANCE Therefore, no in a combination.
participate
point of
In their fourteenth
Any
necessary.
acts was
instruction
overt
deny
trial court erred
appellants claim the
instruction,
of such an
error in the inclusion
Munkatehy’s and Daina Wilburn’s
ing Robert
however, is harmless.
Munkatchy
for severance.
motions
28,
on December
for severance
filed a motion
If
in the
the error
Munkatchy’s
judge granted
The trial
objection
trial
1992.
subject
timely
of a
Nothing in the
January
1993.
motion on
court,
if there was
then reversal
rev'd,
1992),
tried,
S.W.2d 466
App.
865
Worth
case was
that at the time this
7. We note
— Fort
(Tex.Crim.App.1993).
was not
appeals
that the commis-
decision
had held
That
one court of
always
appeals
act is
an element
until
sion of some overt
the court of
overruled
engaging
organized criminal activi-
offense of
appellants’ trials had concluded.
after
(Tex.
Horstman,
ty.
S.W.2d 903
(2)
existed;
why Munkatchy
during
record indicates
was not
the statement was made
separately
grant-
tried
since his
motion was
the course of and
furtherance of the con
(3)
Munkatchy
ed.
spiracy;
ap
Because
was not denied re-
both the declarant and
court,
complain
lief
the trial
he cannot
on pellant
conspiracy.
members of the
(Tex.Crim.App.1991),
appeal.
See Deeb
denied,
t.
505 U.S.
cer
filed a motion for
Wilburn
severance
(1992).
3038, 120
L.Ed.2d 907
S.Ct.
on March
record does not
ruling
contain a
motion. A
Wilburn’s
people
or more
take
When two
party
preserve
party
fails to
error
fails
felony,
part in the commission of a
evidence
opportunity
to first allow the trial court an
*14
though
conspiracy
of a
is admissible
the
even
Tex.R.App.
52(a);
ruling.
make a
P.
Mar
conspiracy is not
substantive
crime of
State,
(Tex.Crim.App.1993),
30,
tinez v.
867 S.W.2d
33
State,
330,
charged. Meador v.
812 S.W.2d
denied,
1246,
t.
512
114
U.S.
cer
(Tex.Crim.App.1991).
conspiracy
332
A
ex
(1994).
2765,
Thus,
S.Ct.
The court in
noted
the ease be
did not elevate the
burden of
that
case
State’s
Jones,
analytically
Appeals
indistinguishable
proof.
fore it was
from
the First Court of
(Tex.Crim.
Ortega
application para
an
OPINION ON REHEARING however, failed such to offer time trial court at the evidence to the YATES, Justice. Where court on his motion to sever. ruled rehearing, appellant, Dai- In his motion for support of no was offered in evidence Wilburn, correctly asserts this court na motion, absence of is shown in the no error alleging of error point his failed address the motion offered at the time such evidence denying his motion the trial court erred presented and overruled. Sanne v. fourteenth for severance. In their 762, (Tex.Crim.App.1980), error, appellants the trial court claimed denied, 452 101 S.Ct. rt. U.S. ce Munkatehy’s denying erred (1981); Fisher v. 69 L.Ed.2d for severance. On Daina Wilburn’s motions (Tex.App. — Houston submission, original determined that the we d). regard pet. ref With [14th Dist.] ruling on did not contain a record Wilburn’s sever, appellant’s motion to Wilburn’s rehearing, motion. On motion for Wilburn point of error is overruled. fourteenth judge his trial denied points out dining pretrial con- for severance motion jury panel. prior to voir dire
ference sever, pretrial Daina Wil-
In a motion separate contended was entitled
burn he of his anticipated he one
trial because
case
had the tes
notes
less
allowing
timony at
abuse his discretion
issue been excluded. Flores
notes,
failing
properly
(Tex.App
take
he erred
. —Houston
(Tex.
1984),
them.
aff'd,
Dist.]
Notes
six notes brief. Wilburn’s suggested in Price. Gar- the admonishments error are overruled. ry supplemental knowingly the credit card of another points Wilburn’s of error are used fraudulently specific overruled. intent to obtain property application para- The and services. judgment of trial The court is affirmed. graph tracked the lan- the court’s guage of the indictment and instructed LEE, Justice, dissenting. jury Ortega guilty find of credit card respectfully disposition I dissent to the jury knowingly if the found that he abuse first of error. This case is specific used the credit card of another with controlled Fee v. fraudulently property obtain intent Fee, (Tex.Crim.App.1992). the court appeals services. The court criminal that, despite found instructions the defi- found that the State was bound to nition of the term combination and the de- Ortega fraudulently prop- intended to obtain fenses excluded from the erty and remarked that “there and services statute, activity would have been thing ‘surplusage’ part in the is no such appellant to find that and all the court’s instructions to the which application paragraph others authorizes Id. at n. 10. conviction[.]” conspired prerequisite to commit theft as a convicting appellant. application The majority attempts distinguish Fee reads, paragraph part: in Fee in relevant Ortega by stating that the bearing in foregoing Now mind the in- paragraphs unnecessarily in those cases in- structions, you believe from the evidence language descriptive of an cluded doubt, beyond a reasonable that on or and, essential element of the offense there- A.D., 1983, day the 11th August about fore, surplusage. could not be considered Bates, Araujo, Jose L. Thomas Scott Ste- held, appeals of criminal has how- The court