Ira CRAIN, Appellant v. The STATE of Texas, Appellee.
No. 14-11-00011-CR
Court of Appeals of Texas, Houston (14th Dist.).
June 12, 2012.
373 S.W.3d 811
MARTHA HILL JAMISON, Justice.
Additionally, the Tax Code requires that a person challenging the validity of a tax sale deposit certain funds into the registry of the court,12 bring any such action within a limitations period, and further provides,
The purchaser may conclusively presume that the tax sale was valid and shall have full title to the property free and clear of the right, title, and interest of any person that arose before the tax sale, subject only to recorded restrictive covenants and valid easements of record set forth in Section 34.01(n) and subject to applicablе rights of redemption.
Having considered the above statutes and cases,13 we conclude that the summary-judgment record does not address critical fact issues concerning notice and filing that are necessary for us determine whether Oyervidez, as a matter of law, was entitled to foreclosure of his liens upon Kothari‘s property. Accordingly, we hold that the trial court erred in granting Oyervidеz summary judgment.
We sustain Kothari‘s first two issues.14
Conclusion
We reverse the judgment of the trial court and remand for proceedings consistent with this opinion.
Lisa G. Porter, Houston, for The State of Texas.
Panel consists of Justices FROST, SEYMORE, and JAMISON.
OPINION
MARTHA HILL JAMISON, Justice.
Appellant Ira Crain appeals her conviction for theft of over $200,000. After appellant pleaded “no contest,” the trial court сonducted a sentencing hearing and assessed punishment at seven years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. In a sole issue on appeal, appellant claims
BACKGROUND
Sam Kelsall III died in March 2003, leaving his son Sam Kelsall IV, an attorney, as executor of his estate. Kelsall IV believed the size of the estate was approximately $650,000. However, in 2007, he received a notice from the Internal Revenue Service informing him that taxes had not been paid on earnings from a Morgan Stanley investment account opened by his father over which appellant, Kelsall III‘s accountant, had power of attorney.1 Kelsall IV had no prior knowledge of the Morgan Stanley account, as account statements were being sent to appellant‘s but not Kelsall III‘s address. Knowing that appellant was his father‘s accountant, Kelsall IV had corresponded with appellant after his father‘s death to obtain information about past tax returns, yet appellant never informed Kelsall IV about the Morgan Stanley account.
Appellant and Kelsall III also had opened a checking account as joint tenants with right of survivorship.2 A certified public accountant (CPA) who had been retained by Kelsall IV testified it would be “[v]ery unusual” for a CPA to open a checking account with right of survivorship as a joint tenant with a client. Approximately $350,000 of Kelsall III‘s money had been transferred from the Morgan Stanley account intо the joint checking account: $300,000 in January 2003 and $47,000 in 2007, several years after Kelsall III died. Another $300,000 was withdrawn from the Morgan Stanley account to fund a promissory note in October 2003, also after Kelsall III‘s death.
After receiving the IRS notice, Kelsall IV asked appellant to help resolve the delinquent tax issue with the IRS. Appellant agreed tо cooperate, but never did, instead offering various excuses as to why she could not. Therefore, Kelsall IV sought a turnover order in probate court in 2008, which was granted. Appellant never turned over the account records, but repaid $781,000 to Kelsall III‘s estate pursuant to the turnover order, which included the funds that were transferred оut of the Morgan Stanley account plus some interest.
As stated, appellant pleaded “no contest” to theft, and the court set the matter for a sentencing hearing. Three weeks before the sentencing hearing, appellant filed a document entitled “Request,” in which appellant “move[d] the court to order the prosecution to give the Defendant written notice prior to sentencing of any extraneous offense or other act or conduct of the Defendant not subject of this indictment which the State intends to introduce into evidence against Defendant.”3 The
Three witnesses testified at the sentencing hearing regarding real estate transactions involving appellant in a subdivision called Kings Colony. Appellant and a company called Colony Ridge both owned property in Kings Colony. Trey Harris, an owner of Colony Ridge, testified he met appellant sometime between 2002 and 2004 when she approached him about buying property that Colony Ridge had purchased from a tax trust in 2000 in Kings Colony. When Harris refused to sell appellant the property, she threatened to have him audited by some friends at the IRS, thereby keeping his accounts tied up for years and preventing him from conducting business. Appellant‘s attorney objected to this testimony on the basis that it was an extraneous offense of which the State had not provided notice of its intent to introduce at trial.
Harris also testified that appellant had been the controlling member on the board of directors of the homeowners’ association for Kings Colony and refused to provide records to Colony Ridge. Colony Ridge sued appellant for the records, and Colony Ridge gained control of the homeowners’ association during the pendency of that lаwsuit. Colony Ridge then discovered approximately $400,000 had been misappropriated while appellant controlled the homeowners’ association.
Dora Valdizon testified that she attempted to purchase land in Kings Colony from appellant in 2008. Valdizon made an initial down payment of $2,000 and signed a contract requiring her to make subsequent payments of $200 a month. She made payments until November 2009, but then stopped because she learned that title to the property had never been transferred into her name. After being indicted, appellant refunded Valdizon‘s money. During cross-examination, appellant‘s attorney asked Valdizon if she knew that apрellant and Colony Ridge had been adversaries in the lawsuit involving Kings Colony. Valdizon responded that she knew something about the lawsuit, and appellant‘s attorney elicited testimony that there was “bad blood” between Colony Ridge and appellant.4
Mora Ramirez Garza attempted to purchase land in Kings Colony from appellant in 2005. Garza paid a $500 deposit and made payments until she paid off the balance in July 2008. While she was making payments, Garza and her family were working to clear the land. After Garza paid off the property, she had difficulty finding appellant to obtain the deed. When Garza eventually located appellant, appellant told Garzа she had an accident and Garza would have to wait for the deed. Appellant eventually provided a deed to Garza, but appellant told Garza a week
EXTRANEOUS OFFENSE
In her sole issue, appellant argues the trial court erred by allowing the State to elicit testimony from Harris regarding appellant‘s threat to hаve him audited by the IRS because appellant did not receive notice of the State‘s intent to introduce that testimony. The State argues that, under the circumstances of this case, it was not required to give this notice, but even if it were, (1) appellant opened the door to the testimony by eliciting testimony from Valdizon that there was “bad blood” between appellant and Colony Ridge and (2) admission of the testimony was harmless.
We review the admission of evidence of extraneous offenses for an abuse of discretion. See Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996). Pursuant to
Here, appellant asked the trial court to order the State to provide notice in both the Request and Motion. The trial court nevеr ruled on the Request or Motion, so the State was not required to give notice. See id. However, the State voluntarily provided the Notice. Appellant argues the State was estopped from contending appellant “could not fairly rely on the [N]otice,” which included 17 extraneous offenses or bad acts the State intended to introduce at the sentencing hearing, because the Notice omitted any reference to appellant‘s threat to have Harris audited.6
This court has not decided whether the State would be limited to the extraneous offenses listed on a voluntarily provided notice.7 However, we need not reach
When evidence about extraneous offenses or bad acts without final convictions is improperly admitted without notice over an appellant‘s valid objection, we still must determine whether it was reversible error affecting appellant‘s substantial rights. Brooks v. State, 76 S.W.3d 426, 435 (Tex. App.-Houston [14th Dist.] 2002, no pet.) (citing
Theft over $200,000 carries a maximum sentence of life imprisonment and a $10,000 fine.
Given the sentence assessed by the trial court and the evidence of appellant‘s other bad acts presented during the sentencing hearing, we conclude that the failure of the State to give notice (even if required) of its intent to introduce testimony involving appellant‘s threat to have Harris audited did not have a substantial and injurious effеct or influence in determining the trial court‘s sentencing decision. See Brooks, 76 S.W.3d at 436 (finding harmless error resulting from State‘s failure to give notice under article 37.07 in light of appellant‘s prior conviction, trial court statement that its punishment determination would not be based on any prior arrest or offense for which there was no final conviction, and 40-yеar sentence given by trial court after State requested 60-year sentence); see also Patton v. State, 25 S.W.3d 387, 394 (Tex. App.-Austin 2000, pet. ref‘d) (holding even if admission of prior conviction for criminal mischief during punishment phase were erroneous, it would not have been reversible error when jury heard evidence of another charge and three other prior convictions and State asked for maximum punishment of 20 years’ imprisonment but jury assessed punishment at seven years’ imprisonment). Thus, even if the trial court‘s admission of the testimony were error, it was harmless. We overrule appellant‘s sole issue.
We affirm the judgment of the trial court.