*1
“element,”
by
appellant
Tex. Penal
The
also
that
as defined
Code
1974),
1.07(13) (Vernon
State’s chemist testified that when he re-
Ann. sec.
into the
2, they
State’s
1 and
Likewise,
ceived
Exhibits
con-
proof.
State’s burden of
substance,
pow-
State,
tained “a
a white
white
v.
No. 642-83
Garrett
charges in
der,”
Officer Johnson testified that
11, 1986) (not
while
yet re-
(Tex.Crim.App., June
him “a
appellant
had sold
small off-
Stephens
v.
ingly a controlled delivered cocaine, weighing than 28
namely, less not in the cocaine was
grams. The fact that ir- time of trial is exhibits at the
the State’s testimony clear- the officers’
relevant when custody, proper chain of
ly established
testimony showed
and the chemist’s
HEFNER, Appellant,
Stephen F.
in the State’s exhibits
the rock contained
In
circum-
such
prior to trial was cocaine.
stances,
to offer
is not
the State
Texas, Appellee.
STATE
Lake v.
contraband into evidence. 05-85-01211-CR.
No.
State,
State’s chemist as cocaine was the same appellant
substance delivered to Of-
ficer Johnson. suggests that another appellant first exchanged
drug sample could have been analysis place
and submitted Johnson, appellant sold
substance testified that Wittaker
because Officer drug pur- made other
they “might have” also day. But Officer Wittaker
chases that only two that he believed by him- day, one
purchases were made Johnson, and that each one
self and contra- custody of the
officer maintained purchased.
band *2 Denison, Hagood, appellant.
R.J. Kamras, Sherman, H. ap- Jonathan pellee. STEPHENS,
Before McCLUNG and ROWE, JJ.
STEPHENS, Justice.
Stephen F. Hefner was convicted a jury theft of less more but than $750 $20,000. jury punishment The assessed at years’ ten confinement and recommended to probated. the court the sentence be probated The trial court Hefner’s sentence and, probation, as a condition of Hefner’s $35,500 pay ordered that Hefner in restitu- Grayson County Attorney’s tion to the of- points fice. Hefner asserts fourteen appeal. error on (1) by including in court erred: sup- a charge jury to definition evidence; (2) ported ap- ordering in restitution; $35,500 (3) in in pellant pay to appellant’s overruling motion for an in- verdict; (4) refusing appellant’s in structed mistrial; (5) entering request a a for judgment of because evi- conviction is the convic- dence insufficient tion; (6) failing require the in State theory upon regarding the elect relied consent; (7) of effective lack allowing reporter to read back (8) admitting testimony; particular let- (9) give evidence; refusing ter into limiting regarding the letter the evidence; (10) in into trial court admitted charge failing jury on the defense fact; (11) failing to law; of mistake jury defense (12) failing instruct Disciplinary Rules of State under the Texas, may good lawyer advance Bar of modification, extension, faith claim the failing law; (13) in existing or reversal attorney, under that an to instruct Bar of Disciplinary of the State Rules Texas, out a contract carry not fail to shall awith client entered into employment services; (14) because professional support the insufficient evidence second agree with Hefner’s We conviction. error; accordingly, order that we point of to reflect probation order be modified direction, her on various occasions Hefner’s probation, as a condition $20,000 City to Oklahoma and re- Grayson employees went pay restitution quantities complainant’s money disagree moved Attorney’s Office. County box; deposit to Dal- safety from the drove remaining points of each of Hefner’s complainant’s money, bought las with Consequently, judg- affirm the error. Hefner or Hef- payable checks cashier’s court as modified. ment of the trial firm; deposited and then ner’s law undisputed that the com- The evidence op- checks in Hefner’s law firm’s cashier’s brought to Hefner’s office plainant erating account. total amount was, firm April 1984. Hefner’s law deposited checks to this account was time, complainant representing the at that $40,000. manager least Hefner’s office ligation against com- civil simultaneous subsequent prior to or testified that either and federal plainant’s children state last to all but the transfer courts. suits between operat- safety deposit box to the firm’s upon the administra- her children centered *4 account, ing discussed the transfer she estate and complainant’s husband’s tion of complainant. She also testified court, testamentary sit- trust. The state during sure these discussions she wasn’t complainant to ting probate, in ordered the “getting through” complainant. she was registry into the certain assets deliver Hef- mere months after By June two the order the court. It is unclear whether $67,000 complainant, ner received the from $67,000 brought complainant included the firm records of the law show handwritten office, evidently complain- to Hefner’s $13,100 in check only travelers Complainant ant assumed did. City safety de- in Oklahoma remained cash, $13,100 $54,000 in in brought posit box. countersigned travelers checks to Hefner’s transfers, complainant After two of the office, attempt to avoid apparently an of the sum withdrawn given portion order, complainant per- the court safety deposit box. City from the Oklahoma attempt ceived as her children’s to obtain occasions, Also, complainant re- on several Hefner, money. office her or Hefner’s receipts from Hefner’s ceived handwritten $67,000 manager, accepted the from com- manager indicating that her bill with office plainant. credited. The firm had been Hefner’s law receipt $67,000, A for the which was by Hefner’s of- receipts given complainant evidence, entered into contains the follow- $21,100 ini- (plus the manager totaled fice Hefner, signed by handwritten notation once, money $7,500 receipt). At least tial [complainant] property “Received of as her City from the Oklahoma was transferred safekeeping subject to her to be held for & Hefner firm’s safety deposit to the box com- direction.” Hefner testified that the route set via the bizarre operating account plainant gave money him the “for given no complainant was safe- forth above ” added). imme- keeping (emphasis “dis- said transfer receipt at all. Nor was $7,500 diately complainant’s deducted from of- by Hefner’s complainant cussed” with deposited had cash and that amount manager. fice operating “for services firm’s account law filed motions August, complainant In rendered”, the state rendered and to be replace federal courts state and both Complainant federal suits. received attorney. another law firm with $7,500 receipt to that effect. for the in federal court Although the motion day limousine take following Hefner had a trial, time of pending at the still $59,500 in remaining employee an and the present- motion granted the state court checks to Oklahoma cash and travelers thereafter, attorney long it. Not ed to in a City, money placed where the located complainant’s children safety deposit rented in his office man- box deposit box of the safe contents seized the ager’s sister’s name. the chil- When a court order. pursuant to box, it contained attorney seized agreement to hold com- dren’s Despite Hefner’s After $13,100 checks. in traveler’s only safekeeping subject to plainant’s money in discovery, trial, Hefner received a letter did not contest the fact complainant’s substituted that the employees counsel de- law firm’s had taken manding $48,900, complainant’s deposited return amount cash and it for cash which credit to operating it was claimed that Hefner the firm’s Nei- account. held in ther did complainant. still trust for Hefner contest the fact that he his office manager refused to return on the authorized to oversee ground arrangements resulting complainant’s in the trans- substituted counsel had Hefner, instead, fers. authority complainant admitted the above no act for because facts theory but defended on the appointment as the was void court had complainant her manifested consent to the jurisdiction. complainant herself payments against transfers as the firm’s then demanded the return of the cash in a legal theory fees. of this Hef- appellant letter addressed to delivered to ner receipts relied on the exe- hand-written firm Appellant his law via certified mail. manager given cuted the office respond demand, did not complainant, indicating that the firm had present prosecution and the ensued. received a total from the com- error, In his first without Hence, plainant for “services rendered.” citing any support of his position, cases in whether effectively consented that the trial court erred primary transfers was the fact issue including portion underlined the fol Clearly at trial. the issue of effective con- lowing charge: sent There- was raised evidence. fore, including did not fact, trial court err “Consent” means assent *5 complained the of express definition. apparent. whether or The term “effective consent” includes Furthermore, the definition of which by person legally a consent authorized to Hefner complains substantially tracks the act for the Consent is effec- owner. not statutory Penal defi- Code definition. if: tive nition of “effective consent” is set forth below: by deception
1. Induced or coercion: (4) by person by consent” includes con- “Effective 2. Given who reason person legally sent act defect, by a authorized to of mental disease or is known by for effective the owner. Consent is not the actor to be unable to make property dispositions. if: reasonable coercion; (A) deception by induced The record reflects that made (B) given by person actor knows the
proper, timely objection the inclusion the legally is not authorized to act for charge portion the of underlined the above owner; of instruction on the basis that (C) given by person by reason who objectionable portion of the instruction was defect, youth, mental disease or supported by dis- evidence. We by is known the actor intoxication agree with Hefner’s contention. property to make reasonable unable charge jury should instruct the as to dispositions; or applicable every theory the law within (D) given solely b commis- detect the scope of the indictment which is esta sion of an offense. by State, lished evidence. Rider v. 735 (Vernon 291, 1987); ANN. 31.01 (Tex.App TEX.PENAL CODE S.W.2d 293 § — Dallas 19, 1974). State, (Tex. complained of defini- Comparing Goodwin v. 1985, ref’d); charge Penal App. Corpus pet. tion in the with the above Christi see — charge’s definition, 375, clear v. 341 Code it is also Cantu 170 Tex.Cr.R. consent second of ineffective (Tex.Crim.App.1960). definition S.W.2d definition, Hence, ineffective tracks the Penal Code consent omitting “youth” evidence, exception the words by court was raised trial con- and “intoxication.” These words properly ineffective included the above re- court Hefner’s omitted charge jury. sent instruction in its object “safekeeping”, and that June did not to the trial quest. Hefner $13,100 1984, only of Penal Code subsections remained the Okla court’s omission (D) charge. Therefore, (B) the court’s Nor City safety deposit homa box. proper. probation mary, lack of effective ner’s tions NAL that, ner had taken from proceed with an Almanza1 harm court’s court’s inclusion tions err did Hefner Hefner’s first out gues that the ceeds Code Since the evidence and definition was his as a subsection objection, of ineffective CODE including order of restitution we hold that the in restitution because second when supporting Likewise, condition of will amount object to the inclusion of Penal not be overturned absent point of error is overruled. ANN. consent one of the (A) in the court the actual in the proper. authority, consent, complainant. A trial therefore, consent was raised charge, did not trial court error, again with charge 31.01(4) probation, erred in charge. statutory defini- ineffective, See a condition wording of $35,500 found Hef Hefner ar over TEX.PE- analysis. ordering will not (Vernon In he defini- sum- Hef- trial pay ex as a condition of Nonetheless, the trial court ordered Gordon proximately the amount decedent’s found Gordon there is a factual basis from which the of the Criminal court would allow To allow cumvention of However, quitted. crime for acquitted victim 628-30 pay could [*] a crime of charge responsible would be at 288. Appeals funeral the trial court to order See whole.” determine that which n (Tex.Crim.App.1986), the him under another Gordon guilty expenses occasioned punishment pulling causing his stated: expenses. [*] probation, under one v. jury’s the decedent’s appellant [*] decedent’s Cartwright, $35,500 had to be a similar The Court verdict. [*] found paragraph paragraph appellant imposed was pay “make death. by a [*] hair, jury trial him cir- ap ac- It Cartwright discretion. abuse with- hold that the trial *6 State, 287, (Tex.Crim.App. 605 289 S.W.2d 6(a) 42.12, authority under Article out State, 275, Collins v. 1980); 701 S.W.2d restitution appellant make to order 1985, writ). (Tex.App. Al 277 by an for which offense — Dallas losses caused though the decision whether order resti criminally not jury had found he was the probation tution as a condition of is within responsible. court, record the discretion of the trial the Gordon, 629, 630. at 707 S.W.2d the must contain evidence to show the bar, charge to at the In the case a factu dollar amount set the court has one paragraphs, forth five theft jury set Cartwright, at basis. See al 605 S.W.2d dates of different for each five paragraph State, 521, Thompson v. 289; from the money was transferred on which Rodri accord (Tex.Crim.App.1977); 525-26 oper firm’s to Hefner’s safety deposit box (Tex. State, v. guez 710 169 S.W.2d then instructed The ating account. ref’d). 1986, pet. App. Antonio — San jury: the a record the case at does contain bar the Defendant you found If have including, court’s factual basis doubt beyond a reasonable guilty probation, a re a as condition Hefner’s beyond find you further acts or theft and $35,500 in resti quirement pay that Hefner acts, any, if said a doubt that reasonable us un record contains tution. The before continuing scheme part of one brought disputed evidence conduct, aggre- the 5, 1984, and that $67,000 April course Hefner’s office the State, whether (Tex. appellate must determine 171 the 1. v. Almanza as a result of requires harm" Crim.App.1984) if is error suffered "some there defendant timely charge. charge, defendant in the properly the in the the error error, appeal. objected then the 614
gate money hearing just amount of obtained as a to determine a of res amount thefts, any, Cartwright, result of those if was over titution. See 605 at S.W.2d $20,000.00, you 289; State, find Thompson then will the Defend- v. 557 S.W.2d 526; State, guilty degree felony ant of second theft. Allen v. S.W.2d you 1986) you (Tex.App. (for If do not so believe have a [1st Dist.] — Houston thereof, you abatement, disposition following reasonable doubt will find Allen see guilty (Tex.App the Defendant not of second de- v. S.W.2d 618 . —Hous 1986)). case, gree felony present theft consider whether ton [1st Dist.] guilty or not he is of the lesser included there a factual basis in the record of theft over and under trial $750.00 offense court’s restitution order. $20,000.00, However, degree felony. third judgment the verdict and the present case indicate that Hefner was you beyond If have found a reasonable acquitted greater of the offense of theft of guilty doubt Defendant was one $20,000. Accordingly, than the trial court described, previously acts or more ordering its abused discretion restitution guilty of one or more of but was said $20,000. greater in an amount than acts, aggregate amount of the obtained as result However, since there is factual basis you acts have found Defendant trial- record court's restitution doubt, guilty beyond reasonable order, no purpose by re- would be served any, less was more than than $750.00 manding the cause to the trial court for a $20,000.00, you then will find the Defend- hearing on the amount restitution which guilty degree felony ant of third theft. Consequently, just. would be we hold that given following probation verdict strik- the order of modified form, and it as set forth answered below: res- requirement that Hefner make $35,500 sub- titution the amount VERDICT Hefner, stituting requirement as a We, Defendant, find Jury, Ste- probation, make restitution condition Hefner,
phen guilty. P. $20,000. the amount of Such restitution made, in shall be accordance with the order, monthly Foreman installments of court's paid. Each Defendant, until has been We, $800 Jury, find the Ste- monthly payment is due on or before phen Hefner, $20,- guilty F. of theft over month, day commencing in the 000.00, tenth charged in the Indictment. period probationary
month Hefner’s be- gins. Rodriguez Foreman at 169. Defendant, We, Jury, find the Ste-
phen guilty F. of Theft Over error, citing *7 point In his third of $20,000.00. and under $750.00 case, that there only complains one Jury /s/ Foreman of the indict a variance between the was fatal
Foreman
presented by the
the evidence
ment and
that, therefore,
trial court
the
State
Therefore,
in
jury
it is clear that the
the
for a direct
overruling
erred in
his motion
present
acquitted
of
case
Hefner of theft
indict
argues that the
verdict. Hefner
ed
$20,000. Accordingly,
the
over
under
himself, Stephen
F.
names
ment
Appeals’ pronouncement
Court of Criminal
crime; while
person
committed the
the
who
Gordon,
in
the
order that Hef-
trial court’s
proved
by the State
the evidence offered
ner
in
pay
restitution as condition
offense,
any,
committed
the
if
probation
his
stand. Hefner’s
cannot
Associates, a Texas
Stephen F. Hefner &
point
error is sustained.
second
disagree
We
Corporation.
Professional
Typically, the absence of
factual basis
with Hefner’s contention.
supporting the dollar amount of restitution
the
abolishes
court,
The current Penal Code
appellate courts
awarded
principals
legal
between
distinction
remand the
trial court for
former
cause
the
manager concerning
accomplices,
longer
the law firm’s office
so
State is
allege
employees
the accused
whether
in which the other
the manner
State,
only guilty
party.
as a
Aston v.
complainant’s money
See
to obtain
(Tex.Crim.App.
455-56
account,
it
Hef-
deposit
in the firm’s bank
alleging
An indictment
ac
necessarily engaged in “conduct” suffi-
ner
sup
may
committed an offense
be
cused
satisfy
requisites of section
cient
only
evidence
he
ported
If
evidence was sufficient
7.23.
guilty
party
as a
to the offense. Pitts v. prove
Hefner directed these activities
(Tex.Crim.App.
culpa-
degree
requisite
with the
of mental
(en banc).
1978)
Undoubtedly,
record
vary
did
bility2, then the indictment
does not indi
presently before
merely
may
it
from
evidence
because
in
personally engaged
that Hefner
cate
corporation could also
have shown that the
constituting
appropriation
overt conduct
in
guilty
question.
of the offense
have been
complainant’s funds from the Oklahoma
overruling
in
The trial court did not err
or
the firm’s bank
their transfer to
bank
for a directed verdict
appellant’s motion
Nevertheless,
replete
with tes
Dallas.
conten-
because the motion rested on the
Hefner’s,
timony, including
that he orches
per-
appellant
held
tion that
could
transfer, instructing the office
trated each
sonally responsible for acts committed
manager concerning
amount of funds
appellant
firm that
behalf of the law
on each occasion and the
to be obtained
principal
as a
not have been convicted
could
they
manner in which
were to be chan-
principals
the former law of
under
nelled to the firm’s bank account.
accomplices.
e.g. Maxwell v.
provisions
Under
Penal
Texas
(tak-
(Tex.Crim.App.1974)
Hefner’s of error states: Assuming arguendo that the State was proving deprive— burdened with intent to support evidence insufficient to is, perma- that judgment property of as the to withhold conviction State totally nently long destroy to or for so prove failed that the as to controver- majority owner, sy complainant to Tex.Pe- appel- between its value 31.01(3) (Vernon 1974)— anything lant amounted to more nal Code than a Ann. § dispute. civil fee we conclude that a rational trier fact beyond could have found a reasonable point Hefner’s fourteenth of error likewise doubt that Hefner acted that intent. with sufficiency of the attacks evidence to acquired testified that the firm law support his conviction. Hefner’s four- complainant’s money in payment of its le- alleges teenth of error that “the evi- gal jury accepted fees. If the dence is as a matter of insufficient law to explanation arranging of his motive for any penal occurred show violation within money, transfer logically of the then the State Texas.” Since both Hefner’s follows that he did not return the intend to points fifth and fourteenth of error chal- however, money If, evidence, complainant. lenge the sufficiency of the we together. explanation points will address these disbelieved this motive, then in- it could have In accordance with Van Guilder v. ferred his intent the manner (Tex.Crim.App. transfer and his refusal return 1985) (en banc), we have reviewed the money it was com- when demanded light record in the most favorable to the that, plainant. indicate did Both verdict, limiting inquiry our to whether a arrange acquisition payment trier of rational fact could have found the fees, place he firm’s intended to guilty beyond defendant a reasonable money control firm within the of the law We hold doubt. that the evidence suffi complain- to return without the intent it to cient to Hefner’s conviction. The ant. provides: Texas Penal Code 31.03. Theft Next, we must determine whether (a) person legally A to show commits an offense if he evidence was sufficient unlawfully appropriates property give in- con- with that did effective deprive tent to of property. the owner Complainant’s testimony sent. was some- (b) times maintained Appropriation inconsistent that she property is unlaw- consented the transfers ful if: that she never she that several but admitted that knew (1) it is without the owner’s effec- occasions, and, she had occurred on two consent; tive receipts firm’s office had received from the (Vernon Supp.1987). Tex.Penal Code Ann. manager acknowledging firm had As we have already respect noted with $21,200 initial (plus obtained a total challenging Hefner’s third of error Nevertheless, $7,500). she deduction of grant trial court’s refusal to directed protested each known claimed that she verdict, the evidence leaves no doubt firm complaints transfer with appropriation Hefner caused of com- overcharging her. Thus, plainant's funds. now turn manager that before office determine whether the evidence was suffi- in June all but the last transfer cient to show that Hefner acted with the com- informed either she or Hefner necessary culpability mental him render needed plainant more criminally responsible. Applying section respect to attorney’s However, case, fees. present 7.02 to the the State was transfer, (1) of consent that final prove issue either: testimony (2) only deprive; acted with intent he we have *9 of, to she was informed nor consented promote acted with intent to not assist
617
rely
consent the
would
testified that he
of ineffective
State
such transfer. Hefner
complainant
disagree;
no
“un-
upon.
entertained
doubt
the case at bar falls
We
$5,800
being
was also
derstood”
this
squarely
the well-settled law. The
within
pay
Resolving
firm’s fees.
this
used to
required to
which
State
not
disclose
was
conflicting testimony in
favor
the ver-
pro
theory
consent it would
of ineffective
to
dict,
support
evidence is sufficient
Thomas,
upon.
621
at
See
ceed
S.W.2d
There is evidence
Hefner’s conviction.
160-64; Cashion,
520. The
657 S.W.2d at
trier of
could
from which
rational
fact
overruling
Hef
not err
trial court did
guilty beyond
Hefner
a reasonable
find
point
sixth
of error
ner’s motion. Hefner’s
point
out that even
doubt.
is overruled.
consented
complainant
to
believed
receipt,
received
transfers for
she
which
seventh
of error com
Hefner's
(although complainant testified that she did
court
re
plains that “the trial
committed
transfers), nonetheless,
to
consent
such
allowing
report
versible error
the court
did not
complainant undisputedly
receive
testimony concerning
er to
read back
$5,800.
receipt
for the last
transfer of
return of
from Dr.
Gordon
Robert
transfer,
Likewise,
regard
to this last
appellant.”
transfers,
prior
Hefner’s office
unlike
Gordon,
psy-
Dr.
a forensic and clinical
manager
testify
was unable to
that she had
chologist
a member of the
Bar of
State
complain-
discussed
withdrawal with
Texas,
seeing complainant
pa-
began
as a
ant. The evidence is sufficient
13,
1984.
April
tient
Gordon
for theft of more than
Hefner’s conviction
him
was referred to
$20,000.
less than
Since we have
$750
attorney.
Hefner
another
Gordon saw
acted
found that the evidence
Hefner
1984,
sufficient,
16,
complainant weekly
July
until
deprive
intent
we
with
During
the evidence
one of the
psychotherapy
address whether
sessions.
will
prove
complain-
Hefner acted
sufficient
with
concluded that
sessions Gordon
promote
intent to
or assist
commission
paying him with funds which
ant had been
fifth
of the offense. Hefner’s
and four-
being
he
were
searched
understood
points
are
teenth
of error
overruled.
Consequent-
Sherman.
federal
ly,
a letter to Hefner
Gordon sent
error,
In his
sixth
$1,760.
letter
enclosed a check
contends that the trial court erred in over
returning all of
indicated that Gordon
ruling
requesting that
his motion
the State
by complainant,
him
money paid
theory
elect under
con
which
ineffective
from
which came
exception
$360
31.01(4)
sent set forth in section of
income,
he be-
rental
because
well-settled,
proceed.
The law
would
subject
a feder-
lieved
such monies
brief,
in his
concedes
al
order.
court’s
specify
is not
in the in
State
type
dictment the
of “ineffective consent”
deliberations, sent
during
their
jury,
State,
v.
Thomas
upon.
621
it relies
following
judge:
note
158,
(Tex.Crim.App.1980)
S.W.2d
160-64
jury is
Let
known that
it be
v.
(on
Cashion
rehearing);
concerning
points
dispute
certain
517,
(Tex.App. Corpus
Christi
S.W.2d
—
to Mr.
from Gordon
return of
ref’d);
Chavez
pet.
31, 1984.
Hefner,
May
on or about
Paso
(Tex.App
— El
Therefore,
reading
request a
writ).
since,
in the
concerning
testimony
such transaction.
bar,
was evidence of some
case
there
reading of
request
Specifically, we
ineffective,
consent,
type of
effective
Steve
excerpts
testimony
acting
he
under a
may
and since
have been
Alimón,
Bader,
Emily
M.D.
fact,
process
due
clauses
Gordon, concerning the
Dr. Robert
Amendments
the Sixth and Fourteenth
dispute.
above-stated
require that
the United States Constitution
/s/[Jury Foreperson]
Respectfully,
given
regarding
theory
he
notice
*10
jury’s
witness,
Hefner
thereby invading
that the
note did not
the
province
the
requirements
meet the
of Article
jury.”
authority
36.28 of
of the
Hefner cites no
for
Texas
proposition.
the
Code of Criminal
this
Procedure
contends that
provides
pertinent part:
since the record “is void of
ever
[Gordon’s]
having
copy
any
requiring
court order
record,
In the trial of a criminal case of
funds”,
the return of such
that “the conclu-
jury disagree
if the
as to the statement
ought
sion
Dr.
reached
Gordon that he
any
they may, upon
applying
witness
to
allowing
returned
the funds and
court,
[sic]
to the
read to them from
have
jury to consider the conclusion invaded the
reporter’s
part
court
*11
Yes,
great
prejudicial
Appellant.”
harm to
A.
sir.
disagree with this contention.
comparison, the letter from Gordon
entirety
forth in its
below:
Hefner
set
discussed,
previously
As
Hefner did
Mr. Hefner:
Dear
testimony
Dr.
re
object
Gordon’s
morning during
psychotherapy
a
This
garding
complainant’s money
his return of
visit, [complainant]
me that she had
told
request
Neither did Hefner
to Hefner.
my
for most of
services with funds
paid
concerning
limiting instruction
Gordon’s
in
the Federal Court
Sherman
Furthermore,
testimony.
Hefner did not
please
my
find
searching for. Attached
request
limiting instruction at the time
$1,760
rep-
of
which
check in the amount
12 was introduced.
State’s exhibit number
[complain-
paid
to me
resents all fees
authority,
Hefner cites no
are un
except
she stated
$360
ant]
allowing
any precedent
of
a defend
aware
her rental
income.
paid from
request
limiting instruction after
ant to
Sincerely yours,
portions
testimony
read to the
have been
Dr. Robert Gordon
/s/
deliberating jury under Article 36.28 of the
to the introduction into
objected
Hefner
If
Procedure.
Hef
Texas Code Criminal
letter,
exhibit
of the above
State’s
evidence
instruction,
limiting
ner desired a
and had
However,
failed to
12.
ob
number
requested
proper,
one
he should have
been
testimony regarding the
ject to Gordon’s
the time the
one at
evidence
received
his
to Hefner.
It is well
return of
fees
evidence is admis
was introduced. Where
error in admission of
settled that an
evi
only,
purpose
for a limited
and the
sible
is cured
the same evidence
dence
where
limita
court admits the evidence without
objection;
in
de
comes
elsewhere without
tion,
has the
party opposing
offer
object every
alleg
time
fense counsel must
limiting
requesting
the correct
burden
edly
evidence is offered.
inadmissible
State, 692 S.W.2d
instruction. Plante v.
507, 510-11
Hudson v.
Consequent
(Tex.Crim.App.1985).
493
Sapien
(en banc);
see
(Tex.Crim.App.1984)
properly be con
ly, the
could
evidence
(Tex.App.—
217
Hefner’s
purposes
for all
due to
sidered
ref’d).
pet.
if the
Texarkana
Even
limiting
request
failure to
admitting
trial court erred
State’s exhib
introduced. The
the time the evidence was
evidence,
such error has
number
into
refusing
give
err in
trial court did not
preserved.
eighth point
not been
Hefner’s
ninth
the instructions.
of error is overruled.
error is overruled.
his ninth
error
refusing
the trial court erred in
con-
point of error Hefner
In his tenth
jury
portions
instruct
after
Gordon’s
refusing
the trial court erred
tends that
during
testimony
jury
read to the
defense of mis-
jury
on the
requested that
their deliberations. Hefner
re-
fact. We hold that
take of
jury
“the court further advise the
that such
mis-
on the
quest
special instruction
for a
sum of
cannot be used as a basis for
general
too
take of fact defense was
conviction,
the in-
for the reason that
preserve error.
alleges
the dates
and the
dictment
in his brief
amounts.” Hefner concedes
the Texas Penal Code
8.02 of
Section
that,
ex-
“while the introduction of State’s
part:
provides
pertinent
hibit
was not introduced to show [sic]
Fact
8.02. Mistake of
§
appar-
extraneous offense when it became
prosecution that
(a)
It is a defense
Appellant
ent to the State
and to the
[sic]
through
a rea-
mistake formed
the actor
considering
obviously
that the
if
fact
a matter of
offense,
sonable belief about
as such an
return
negated
kind of
mistaken belief
obligation
his
the Trial Court was under an
required for commission
culpability
duty
give
limiting instruction
such a
offense.
do so resulted
and the Court’s failure to
(Vernon
ANN.
8.02
the trial court’s instruction to the
TEX.PENAL CODE
requested
following spe-
the defense of mistake of fact.
cial instruction:
appellant Beggs
at 376. The
prosecution
It is a defense to
that the
requested
following
instruction on
Defendant,
mistake,
through
formed a
fact be included
the court’s
reasonable belief about a matter
fact
charge:
negated
if mistaken
the kind of
belief
prosecution
It is a defense to
culpability required for the offense of
*12
through
Defendant
mistake formed a
the offense.
reasonable belief about a matter
fact
Therefore,
you find
from
if
or believe
negated
if her mistaken
the kind of
belief
doubt,
evidence, beyond
the
a reasonable
culpability required
the
commission
herein, presented
term is defined
as that
charged.
of the offense
cause,
in the trial of this
the evidence
the
Defendant committed
of-
the
The Term “reasonable belief” means a
theft,
alleged in
as
the indict-
fense
ordinary
be held
belief
would
find,
ment;
you further
or have a
but
prudent person
in the same circum-
thereof, that the De-
reasonable doubt
stances as the Defendant.
mistake,
fendant, through
formed a rea-
Therefore,
you
if
from the evi-
believe
negated the kind of
sonable belief [sic]
beyond a
that the
dence
reasonable doubt
culpability”,
term is
as that
“reasonable
alleged,
the
Defendant committed
acts
charge, required for the
defined in this
believe,
you
you
further
have
offense,
alleged
then
commission
thereof, that, at the
reasonable doubt
Defendant, and find
you
acquit the
will
acts,
through
alleged
the
she had
time of
by your
Guilty”,
Defendant “Not
the
formed a
belief about
mistake
reasonable
verdict so state.
a matter of fact to-wit: that the water
timely objected
the court’s fail-
question
hot to the extent to
was not
instruction
the
ure to include the above
bodily injury as that
cause serious
charge.
requested by Hef-
The instruction
defined,
term has been heretofore
apprise
trial court of what
ner fails to
the
negated the cul-
that said mistaken belief
relying upon.
fact,
mistake
Hefner is
pability required for the commission
simply request
general
Hefner cannot
offense,
Paragraph
stated in
3 of
the
hope that the
on mistake of fact and
charge,
find the Defendant
you
will
mistaken
magically
can
ascertain what
guilty.
he formed.
belief
(Tex.
It is a
of the case.
through
formed a rea-
facts
mistake
defendant
fact if
matter of
belief about a
sonable
dealing
the defense of
cases
with
Other
kind of
negated the
belief
his mistaken
in which
fact involve situations
mistake.of
required for commission
culpability
requested
an instruction
the defendant
the offense.
law to
facts. For exam
apply the
did
therefore,
Now,
you find
believe
ple,
Jackson
a reasonable
beyond
the evidence
banc),
(en
defend
(Tex.Crim.App.1983)
committed
schools,
that the defendant
doubt
ant,
superintendent
alleged
injury to
child as
offense of
of school
charged
theft of
$285.87
find,
indictment,
further
you
Davis,
but if
from T.D.
a member
system funds
thereof,
reasonable doubt
have a
of the school board. Davis
through
had,
meeting, ap
formed a rea-
defendant
school board
system
fact
a matter of
school
proved payment
belief about
current
sonable
Margarita
negated
bills,
the kind
included
mistaken belief
which
$258.87
*13
The
Rodriguez
commis-
for travel reimbursement.
culpability
for the
checks, including
pay
offense,
one for
made
acquit the
you
$258.87
sion of the
will
Margarita Rodriguez,
left
able to
charged in the
of the offense
defendant
to the
defendant for distribution
with the
say
“not
by your
indictment and
verdict
Defendant
cashed the
payees.
$258.87
guilty.”
that he was
The defendant testified
check.
term
as herein-
By
“culpability”
the
family.
Rodriguez
a close friend
the
culpable mental
used is meant the
before
Margarita worked
testified that
Defendant
2(A) and
Paragraphs
defined in
states as
fre
system
traveled
the school
and
2(B) above.
the mi
school business under
quently on
in
appellant
Beggs
378.
597 S.W.2d at
The
testified that
grant program. Defendant
on the
objected to the above instruction
Margarita
to reim
entitled
he believed
was
mistake
ground
specify
that “it fails to
the
the
travel and that because
bursement
alleged
by the De-
and
fact
end,
filed
nearing its
he
period was
fiscal
replaces
gen-
a
and
same with
fendant
the
her
requisition
reimbursement
fact, thereby
eral definition of mistake of
explained that
Defendant
then
behalf.
Jury
finding
preventing the
affirma-
from
son and
by Margarita’s
endorsed
check was
tively
defensive
raised
on a
issue
request.
son’s
he had cashed it at the
that
Beggs, 597
at 378. The
evidence.”
requested1
The defendant
Jackson
that
Appeals
Court of Criminal
noted
relating to
following special
instruction
fact,
court’s instruction on mistake
of fact:
above,
apply
did
the law
set forth
not
you
if
believe
You are instructed
the facts. The
stated:
Court
Defendant,
evidence that
from the
charge
give
court’s
a
The trial
refusal to
Jackson,
check num-
obtained
James
applied the law mistake
of fact
faith, believing
did,
good
if he
ber
case,
over
very
facts of
relation-
was a debtor-creditor
that there
a
objection
in the face of
appellant’s
and
one
existing
the owner
ship
between
requested charge,
reversi-
properly
ac-
Rodriguez,
you will
Margarita
then
error.
ble
Defendant,
Jackson
quit the
James
added).
you
(emphasis
verdict,
guilty,
at
or
by your
say
thereof, you will
a reasonable doubt
have
re-
of fact
The instruction on mistake
acquit the Defendant.
is
the errone-
quested
similar to
of Crimi-
given by the trial court
The Court
ous instruction
S.W.2d at 226-27.
appel-
“[although
applies the
held
Appeals
in that neither instruction
Beggs
nal
charge
not drafted
present-
requested
of fact to the facts
lant’s
law of mistake
8.02,
find
Appeals
language of Sec.
The
ed at trial.
Court of Criminal
for a
request
sufficient
constitute
general
Beggs
held that
charge
entitled.”
he was
which
improper;
defensive
of mistake
fact
law
(Tex.
they
given
the transfer
her
any
decep
was an unrea
absence
concealment or
sonable belief that did not
Hefner to
tion,
entitle
slight.”
Baker,
however
State v.
rely on the defense of mistake of fact. See
367, 374 (Tex.Civ.App.
S.W.2d
— Austin
(Tex.
v.
Smith
1976, writ).
no
1985, writ) (“mistake
App.
no
Worth
— Fort
hold that
not
Hefner was
entitled to
upon
must be founded
belief
reasonable
instruction
the mistake
an
on
of fact de-
matter”)
origi
(emphasis
about the factual
complain-
fense
because his belief
nal);
Mata
consented
ant
an
belief
unreasonable
writ)
(Tex.App.
Antonio
— San
ordinary, prudent
acting
that an
man
in a
gun
(holding
appellant’s
belief
fiduciary relationship would not
held.
have
containing three
rounds
ammunition
live
Again, we realize
a
defendant is enti-
empty
and three
chambers
not dis
would
any
tled to an instruction on
defensive the-
belief” as
was not
“reasonable
ory raised
Esparza,
the evidence. See
defined
Texas Penal Code Section
However, by
fense of mistake of fails to good Hefner also that he had a present facts, law and therefore fails opinions faith belief based on courts’ apprise court what mistake substituting the state court’s order another upon. of law Hefner relied request Such a attorney place These invalid. preserve is insufficient to error. TEX. beliefs are to the case at irrelevant bar. (Vernon CODE CRIM.PROC.ANN. 36.15 theft; charged with that is the Supp.1987). Furthermore, the record be- complain- unlawful exercise of control over us opinion fore fails to disclose court ant’s without effective consent by or statement public official which complainant deprive the intent to justified would have a reasonable belief money. of her Hefner’s sub- Hefner that his conduct not criminal. jective regarding validity beliefs Hence, law was not raised simply importance court’s orders are of no the evidence before us. See Austin v. prosecution in this theft. Reliance (Tex.Crim.App. opinions Hefner on a court’s nonetheless does not excuse Hefner’s conduct as charged in Hefner could the indictment. Hefner’s brief does not contain a belief based not have formed a reasonable indicating citation to the record where Hef opinions on court’s official statements opinion ner disclosed to the trial charged that the conduct the indictment *17 or official which he relied. statement on legal. reasonably Hefner Whether If, however, did, portion Hefner in some of thought were void is not the the orders this nine volume of facts and statement one entitled to an in- issue. Hefner was not ninety-seven page transcript, hundred and struction on the mistake law defense. upon cite the he cases or statement which relies, Commentary following Tex- does The Practice evidence nonetheless not gives examples support the of the as Penal Code 8.03 submission mistake of section TEXAS, mistake situations which the of law SUPREME COURT OF RULES GOVERNING THE BAR properly defense could be invoked: STATE OF TEX- ner refusing include Hefner’s enth rable to the above mistake of dence in the ner’s error official statements lead timely versal argument conduct to inform the court which court that he is entitled to such an instruction vides: under ry to Searcy & sibility (A) lawyer DR 7-102. not constitute a Under the narrow Beverage tions could defend cuted for consumption could defend on the cution on the basis of a declaring submission grant point alleged was not Section In his [*] Bounds trial Texas Code request of (b)(1) In his twelfth Rule (Vernon 1974). shall Patterson, existing of error is overruled. court did not err law in of law defense. Hefner’s elev- give # present Commission; permission selling not and extension, representation of a mistake of law is Representing 7-102(A)(2). preserved; 8.03, not: of a against criminal; (b)(2), requested [*] of Professional monopoly. examples. at 166. practice law.” beer for case does special Practice Commentar Tex.Penal Code Ann. exception of Law. point a cafe owner an antitrust modification or re from the Alcoholic him to Accord, [*] (2) a Client Within Hefner claims This rule instruction on instruction of error Hef court Clearly, because: off-premises question not proper refusing not [*] (3) opinions good believe his Austin erred business client, Respon basis support Subsec- opinion compa- prose- prose- failed faith, [*] Hef- pro evi- “in did (1) or to instruct the prosecution for plainant’s point ty. Hefner was argues claims have ner’s criminal Hefner was fessional Tex.Code the reasons teenth for his have the thority supporting instructed AS are gated by error, Hefner’s thority in sponsibility) (Vernon our Responsibility]. after cited as Texas Code of Professional DR 7-101. (A) ously. have art. ployment entered into with research professional (2) DR draw unaware We hold his thirteenth twelfth [*] of error A provides: on Fail XII, Finally, proposition 5-102, addressed all of lawyer prosecution bearing the Texas jury Responsibility behalf, of Professional on a pursuing bogus [*] DR-7-102(A)(2) (1973) previously discussed in of error is overruled. has point permitted of the existence pursuing Representing a carry trial court and DR 5-105. we shall first, services, Hefner cites (Code theft. disciplinary revealed overruled. on Hefner’s [*] of this contention. has a criminal point on Texas Code of that he is entitled to out Supreme error, third, no effect behalf valid, good again under DR [*] disciplinary a contract of em- out Hefner’s erred in theft. intentionally: DR Professional Re- no present proposition claims on com- Responsibility error, fourth, such authori- he may rule no authority cites Court. We Client prosecution [*] or 7-101(A)(2) a client for of any although points Whether refusing whether promul- case, [herein- twelfth no au- 2-110, fifth, with- rules faith Zeal- [*] Hef- thir- Pro- For au- (2) twelfth, Knowingly seventh, eighth, a claim or de- thirteenth advance under points that is exist- of error have been fense unwarranted fourteenth law, except may comply they that he advance waived because do 74(f). Procedure sup- Appellate if it can be Rule of such claim defense Texas 74(f) prior to the date ported good argument Rule was effective faith for an This modification, extension, appellant’s filed brief. or reversal of Hefner brief, the appellate requires rule that in an existing law.
627 argument question in his support in of a of error was mind but that com- include “such discussion of the ... plainant shall approved understood and each upon may requisite authorities relied alone, Standing made. transfer when this argu- The to maintain the at issue.” evidentiary litany regarding Hefner’s “be- sup- in ments contained in Hefner’s brief lief” that he had con- valid first, fifth, seventh, eighth, port of his signal each sent to make transfer was a twelfth, points thirteenth and fourteenth judge had that such belief a crit- any contain error do not citations impact culpability. ical on Hefner’s argument in cases. State, Knowles v. points of error contain his third and fourth (reversing (Tex.Crim.App.1984) the convic- single only noncontrolling citations remanding tion and the cause for another hold, cases. We therefore the alterna- trial because of the trial court’s failure to tive, listed that Hefner waived above of fact defense submit mistake which points of error. negated culpability defendant’s in a theft judgment of the trial court is mod- prosecution solely by when raised testimo- extent Hefner is ified to the defendant). ny Clearly, if Hefner was pay restitution the amount of entertaining reasonable in such a belief probation. as a condition of his In all other mistaken, was nonetheless he lacked the respects, judgment of the trial court is Thus, guilty mens rea to be of theft. affirmed. through highlighting testimony his own subject, an exact basis for Hefner’s ROWE, Justice, dissenting. clearly section 8.02 defense was indicated. respectfully I dissent. I would hold not majority While the contends that the in- only preserved Hefner adequately er- struction which Hefner tendered was defec- respect ror with to his mistake of fact tive, it was at least sufficient on its face to defense but also that the trial court erred call the trial court’s to Hefner’s attention failing charge appro- to include its right proper to a on the defensive priate instruction on this defensive issue. issue therein addressed. Williams v. Accordingly, I would reverse the trial (Tex.Crim.App. judgment court’s of conviction and remand with the cause for a new trial. Hefner is not burdened placed upon same a trial mandate that appeal, On Hefner contends he which, notes, judge, majority as the is to harmed the trial court’s denial of his properly particular apply the law to the mistake of fact defense. Hefner presented facts at trial. All Hefner was concerning detail each transfer of funds obliged omitted de- to do was call the expressed his belief that each was au- judge’s fense to the trial attention with by complainant. thorized Prior to submis- judge particularity such as to enable the charge, requested sion of the perceive Regittano and cure the error. .special tracking language 477, 257 (Vernon 96 Tex.Crim. S.W. TEX.PENAL CODE ANN. 8.02 1974) (1922). degree specificity required authorizes the mistake of fact Upon necessity vary defense. in- objection examination of those will of with proposed structions by the court for sub- presented. the context in which it is With- jury, mission to the objected setting presented by the factual any charge omission of on mistake of fact. case, re- persuaded I am that Hefner’s objection to the quested instruction and his opinion, majority its has character- charge, coupled testimony concern- with his “primary litigated ized the fact issue” at ing complainant validly had his belief that being trial as effec- “whether consented, omit- sufficient to call the tively consented to the Tak- transfer[s].” the attention ted mistake of fact defense to defense, the stand in his own testified, preserve for length, precise- judge of the trial and thus separately ly transfer, respect appellate question. to each that there review the error
Further, upon thorough of the review CLEMENT, convinced, Appellant, record, contrary I Simmie trial am holding majority, be- v. validity lief in Texas, Appellee. STATE a matter consent was unreasonable as No. 12-86-0164-CR. conflicting Regardless all law. Texas, Appeals Court testimony, assertions contradicted Tyler. evidentiary weight to standing alone have 31, July of fact defense. See 1987. his mistake Campbell
(Tex.Crim.App.1981); Thompson v. (Tex.Crim.App.1974). facts
Accordingly, I would let the trier of disputed
determine the matter of whether professed genuinely belief held him. exculpate
which would majority
I Hefner is agree with the acquittal
not entitled to an for insufficient entitled, however, a new He is
evidence. grounds judge com- by failing to include
mitted reversible error charge, duly requested by covering appropriate instruction of fact defense raised the evi- State, 646 S.W.2d
dence. See Jackson v. (reversing (Tex.Crim.App.1983) remanding for an-
conviction cause fail-
other trial because of the trial court’s
ure defense to submit mistake fact
its in theft when raised evidence
prosecution and atten- called to court’s sufficient, technically
tion albeit not
correct, instruction). I Accordingly, would
reverse and remand the conviction cause for a new trial. Holt, Longview, appellant. Nathan Tunnell, Longview, appellee.
John SUMMERS, Chief Justice. Appellant was convicted Simmie Clement aggravated sexual assault of the offense of plea guilty and the of a child. His thirty years’ punishment at assessed his ap- Appellant contends on confinement. of the victim’s peal the admission testimony to article videotaped pursuant right of confrontation. 38.0711 violated We affirm the conviction. noted, refer unless otherwise
1. This references to articles and all other (Vernon Supp.1987) to Tex.Code Crim.Proc.Ann. notes of such province jury prejudicial of the and was to particular testimony point witness or the Although eighth Defendant.” dispute, no other.... letter, point of error focuses Gordon’s (Vernon 1981). TEX.CODE CRIM.PROC. argument point his of his jury’s Hefner contends that note did complains testimony. error of Gordon’s particular point not indicate what dis- case, preserve either Hefner has failed to therefore, puted and that trial court any error. The record that Hefner reflects allow the should have refused to court re- objected to the introduction ex- of State’s any porter any portion read witness’ hibit number Gordon’s letter to testimony jury. disagree for presence outside of the jury, on the First, reasons. two statement of facts grounds “any opinion he [Gordon] testimony does not indicate what was read give would as to the reason to the re- as jury. simply The statement of facts complainant’s money turn [of Hefner] states: However, has not been established.” when Bring jury THE in. COURT: follows, Gordon testified as Hefner failed (Whereupon, jury was returned into object: open p.m., court at 1:37 which time the Q. you paid your And how were requested portions testimony services? them, time read after which paid I presume A. I that was p.m. 1:45 to continue their was retired at payment according to ordinary course of deliberations.) procedure, our which is that office Hence, we are unable to determine whether patient pay for her would testimony jury complied read to the at the conclusion visit. Second, Article with 36.28. Hefner has Q. paying you? So she was any noncompliance waived error or Yes, A. sir. lodge Article 36.28 he failed to because Q. during the course Sometime proper objection. request did your with her and treat- consultations allowing exerpts “in addition [the her, you ment have occasion to did requested by read, jury] to be we re of certain factors involved become aware quest further court advise County, Grayson Texas? that such sum cannot be used Yes, A. sir. conviction, the basis the reason that, Q. upon you take And did based alleges indictment dates and regard the monies some action with request, even if amounts.” This it is con paid you? that she had sufficiently is not objection, strued as an Yes, preserve A. See Thomas specific to error. sir. (Tex.Civ.App.— Q. was that action? And what writ). Accordingly, Hef Dallas [complainant] A. I determined ner’s seventh of error overruled. visit, that surprising psychotherapy in a she me with funds which was paid has error, In his eighth understanding my the court court erred in allow asserts searching for. Dr. Gordon’s letter be introduced Q. Grayson County, Tex- into the letter “was a evidence because as? of facts and the conclusion misstatement