OPINION
Opinion by
Appellant, Irene V. Rodriguez, is a notary public. A jury found appellant guilty of holding herself out as an attorney, and the trial court assessed punishment at ten years’ confinement, probated, and a $1,000 fine. On appeal, appellant challenges the legal and factual sufficiency of the evidence in support of the verdict, and she asserts the trial court erred in overruling her motion for new trial. We affirm.
SUFFICIENCY OF THE EVIDENCE
The indictment alleged appellant “with intent to obtain an economic benefit for herself held herself out as a lawyer, to-wit: by stating that she was a lawyer that knew how to process immigration applications, and [she] was not then and there licensed to practice law in, this state, another state or foreign country.” Appellant asserts the evidence is legally insufficient because the State failed to. offer any evidence that she held herself out as a lawyer who “knew how to process immigration applications,” and the State failed to offer any evidence that she committed the relevant conduct with the intent to obtain an economic benefit for herself. Appellant asserts the evidence is factually, insufficient because the great weight and preponderance of the contrary evidence demonstrates the jury’s verdict was clearly wrong and manifestly unjust.
There is “no meaningful distinction between the
Jackson v. Virginia
[
Appellant is a notary public who maintains an office in Rio Grande City, Texas. She is not an attorney. Genaro Esparza testified he went to see appellant at her office in March 2000 because he needed help with immigration proceedings for his wife and children. Esparza said he did not know anything about immigration and a friend of his told him appellant was an attorney. He stated that when he first met with appellant and told her he needed immigration help, appellant told him she could help, “that she was an attorney and that she was authorized to work on immigration papers.” Esparza continued to consider appellant his attorney through 2006 because she told him she was an attorney when they first met. In May 2005, Esparza went to speak with appellant because his son’s visa had expired and the visas held by his wife and other children were going to expire. Appellant told him “we were going to need more money.” When Esparza went home and told his family about this conversation, his family cautioned him that appellant was not an attorney. Later, Esparza expressed this concern to appellant and, according to Es-parza, appellant “told [him] she was an attorney and she gave me this [business] card so that I could be at ease.” The business card does not state appellant is an attorney, but instead, reads: “Rodriguez Immigration & Office Services.” In January 2006, Esparza decided to terminate the relationship with appellant. He went to her office and asked for his paperwork, which she refused to provide. When he made a second visit to her office, she gave him his documentation. He did not look for another attorney to help him because he had no money.
On appeal, appellant concedes this evidence provides some proof for a portion of the indictment’s allegation; but, she contends there is no proof that she stated she was a lawyer who knew how to process immigration applications. According to appellant, the processing of immigration applications falls within the sole discretion of the United States government. Therefore, appellant contends there is no evidence to suggest she held herself out as a lawyer in the manner alleged in the indictment.
We disagree with appellant’s argument that failure to prove she actually stated she was a lawyer who “knew how to process immigration forms” rendered the evidence insufficient. “[W]hen faced with a sufficiency of the evidence claim based upon a variance between the indictment and the proof, only a ‘material’ variance will render the evidence insufficient.”
Gollihar v. State,
Here, the essential elements of the charged offense are: (1) a person, not “currently licensed to practice law in this state, another state, or a foreign country and [who is not] in good standing with the
Appellant also contends the overwhelming weight of the following evidence is contrary to the verdict. Appellant submitted into evidence a copy of a form signed by Esparza’s wife on April 9, 2003, which was written in Spanish and stated, in part, that “[t]his office is not responsible for any type of legal representation or legal service.” Michael Aguirre, an assistant attorney general with the Texas Attorney General’s office, testified appellant was the defendant in a lawsuit filed by the AG’s office in 2007. Prior to that suit, the AG’s office conducted an investigation of appellant, pursuant to which the AG’s office confirmed appellant was not an attorney licensed in Texas, another state; or another country. Aguirre stated that in Mexico a “notario publico” is a licensed attorney; therefore, to prevent confusion among Spanish-speaking individuals, a notary public in Texas is not allowed to advertise as a “notario publico.” Aguirre said his investigation did not reveal that appellant advertised as a “notario publico,” nor did the building outside her office have any signage indicating she was an attorney. When asked if he had ever seen a document that appellant signed “as a lawyer,” he responded that he had. Aguirre thought the document was an immigration form sent to the INS and, although he could not recall the precise language on the form, he thought the form included a clause “that states attorney represents— representing you” and it had appellant’s notary stamp. Aguirre agreed one does not have to be a lawyer to fill out an immigration form, but it is against the law in Texas for a notary public to complete an immigration form.
Rozanne Lopez, an investigator for the AG’s office, testified she made an appointment with appellant under an assumed name and carrying a hidden audio/video recorder. In late 2005 and early 2006, she met with appellant under the pretext of being married to a man who was a naturalized citizen who had a brother living in Mexico trying to get into the United States. She paid a $20.00 fee for an initial consultation. Appellant told Lopez how the process worked, that she (appellant) would prepare the documentation, and file the documents with INS. While Lopez was waiting in the lobby of appellant’s office, she heard some people ask to “speak to the licenciada Irene Rodriguez.” 1 She said the lobby wall had several framed letters “from people [for whom appellant] had provided an immigration service,” and thanking her for services provided. However, Lopez said there were no signs using the words “notario publico” or indicating appellant was a lawyer or that she was offering legal advice.
Once inside appellant’s office, Lopez said there was a plaque on the wall behind where appellant sat stating in English that she was not a lawyer. Lopez asked appellant about a divorce and appellant said she did not handle divorces and she could refer Lopez to a lawyer. When Lopez asked appellant about preparing a will, appellant
However, “the jury is the exclusive judge of the credibility of witnesses and of the weight to be given testimony, and it is also the exclusive province of the jury to reconcile conflicts in the evidence.”
Wesbrook v. State,
B. Obtaining a Benefit for Herself
Appellant next contends the evidence is insufficient because any conduct for which she was paid in 2000 through 2004 fell outside the limitations period, 2 and her 2005 statement that she would “probably” need more money is nothing more than hypothetical speculation and fails to show how any payment of more money placed her in a more advantageous position.
We do not agree that the State had to prove appellant was placed in a more advantageous position. Texas Penal Code section 38.122 does not define “economic benefit,” but section 38.01 defines the term to mean “anything reasonably regarded as an economic gain or advantage, including accepting or offering to accept employment for a fee, accepting or offering to accept a fee, entering into a fee contract, or accepting or agreeing to accept money or anything of value.” Tex. Penal Code Ann. § 38.01(3). The word “benefit” is defined in the Introductory Provisions of the Penal Code as “anything reasonably regarded as economic gain or advantage, including benefit to any other person in whose welfare the beneficiary is interested.” Id. § 1.07(a)(7). Therefore, we review the record for evidence of whether appellant held herself out as a lawyer with the intent to obtain an economic gain or advantage.
When Esparza first met with appellant, he paid a $20.00 consultation fee. After explaining his immigration problems to her, he and appellant agreed he would pay her $2,500 to begin the immigration paperwork; and, between March 2000 and June 2000, he paid the fee in installments. He paid another “consultation fee” in March 2001. At some point in time, Esparza asked appellant what could be done for “two men of age,” and she said that for $450.00 each “she could get ... a work permit for them.” Although the purpose of further payments is not clear from the record, the record indicates that in 2002, appellant was paid a total of $2,070; in 2003, she was paid a total of $1,650; and in 2004, she was paid $30 to “consult” with Esparza’s son about his visa. In May 2005, because his son’s visa had expired and the visas held by his wife and other children were going to expire, he went again to speak with appellant. Appellant told him “we were going to • need more money.” This statement indicates appellant did not provide her services for free.
We conclude the evidence is sufficient to establish that appellant intended to obtain an economic benefit for herself by assisting appellant and his family with their immigration proceedings.
Satterwhite v.
IN PARI MATERIA DOCTRINE
In her third issue, appellant argues the doctrine of in pari materia barred her conviction on the charged offense. Appellant asserts the Penal Code section under which she was prosecuted is in pari mate-ria' with a special statute of similar purpose providing for a lesser punishment under the same fact scenario.
We conclude this complaint has been waived because it was not brought to the trial court’s attention until appellant filed her amended motion for new trial. To preserve a complaint for review, a party must present a timely request, objection, or motion stating the specific grounds for the desired ruling if such grounds are not apparent from the context of the request, objection, or motion.
See
Tex.R.App. 38.1(a)(1). In particular, to challenge the substance of an indictment under the
in pari materia
doctrine, a defendant must object before triál to preserve the complaint on áppeal.
See
Tex.Code Crim. Proo. Ann. art. 1.14(b) (Vernon 2005);
see also Short v. State,
JUROR MISCONDUCT
Appellant next contends juror deceptiveness and misconduct deprived her of a fair and impartial trial. During voir dire, the prosecutor asked if anyone knew the appellant. Veronica Trevino, who later became the foreperson, did not respond. Veronica’s sister, Leonor Trevino, was a former employee of appellant.
In support of her motion for new trial, appellant attached the affidavit 3 of Ninfa Velasquez, who stated she is acquainted with appellant and attended the criminal trial. Velasquez said Leonor left appellant’s employ “on unfavorable terms,” and Leonor told her appellant “was too strict with her and she decided to quit her job.” Velasquez was “of the belief that because of these unfavorable terms [Leonor] has a natural bias and prejudice against” appellant. Velasquez alleged that “prior to this criminal trial ... Leonor spoke against the case, against [appellant], and that she was hoping the case would go against” appellant. She described Veronica and Leonor as a “close knit family.” She believed “that Veronica had personal inside knowledge of the workings and mechanics of [appellant’s] business which influenced Veronica’s verdict in -this case.”
Appellant bore the burden of proving the allegation of juror misconduct.
Hughes v. State,
INEFFECTIVE ASSISTANCE OF COUNSEL
Finally, appellant contends she received ineffective assistance of counsel for a number of reasons. We review an appellant’s claim of ineffective assistance of counsel under the well-established standard of review.
See Strickland v. Washington,
Appellant first asserts that if this court finds the
in pari materia
argument to have been waived, then counsel was ineffective for failing to raise the objection. This complaint calls for speculation about why counsel did not object. On appeal, appellant contends there could be no possible trial strategy for not objecting because the objection goes to the trial court’s jurisdiction. However, we note that no Texas court has yet considered whether the two statutes at issue here are
in pari materia.
“Ignorance of well-defined general laws, statutes and legal propositions is not excusable and such ignorance may lead to a finding of constitutionally deficient assistance of counsel, but the specific legal proposition must be “well considered and clearly defined.’ ”
Ex parte Chandler,
Appellant next asserts counsel was ineffective because he failed to object to prejudicial evidence of the Texas Attorney General’s civil suit against appellant
Appellant next complains counsel was deficient because he did not request a jury charge on limitations. This complaint again asks for this court to speculate. Also, appellant has not established she would have been entitled to such an instruction if one had been requested. Finally, appellant contends counsel’s cumulative errors prejudiced her defense. Because we conclude appellant did not meet her burden of establishing individual instances of ineffective assistance of counsel, we hold that she cannot show an adverse cumulative effect from the actions of trial counsel.
See Chamberlain v. State,
Appellant’s other two grounds for complaining of the trial court’s denial of her motion for new trial are that the evidence is insufficient and the interests of justice demand a new trial. Based on the above discussion, we conclude these complaints are without merit.
CONCLUSION
We overrule appellant’s complaints on appeal and affirm the trial court’s judgment.
Notes
. "Licenciado" is Spanish for a "title given to lawyers.”
. The felony indictment for this offense had to be brought within three years from the date of the commission of the offense. Tex.Code Crim. Proc. Ann. art. 12.01(7) (West Supp.2010). The indictment, dated April 1, 2008, alleged the offense occurred on or about May 31, 2005.
. Although a trial court may receive evidence by affidavit, the affidavit is not considered evidence unless it is offered into evidence at the hearing on the motion.
Rouse v. State,
. At the new trial hearing, appellant’s attorney stated he did not have a conversation
. Counsel’s affidavit was not offered into evidence during the new trial hearing, and therefore, was not before the trial court.
See Rouse,