KENNETH GARRETT BEATTY v. THE STATE OF TEXAS

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Court of Appeals of Texas, Houston (1st Dist.).

KENNETH GARRETT BEATTY, Appellant v. THE STATE OF TEXAS, Appellee

NO. 01-08-00335-CR

Decided: May 27, 2010

Panel consists of Justices Jennings, Hanks, and Bland.

MEMORANDUM OPINION

A jury convicted Kenneth Garrett Beatty of theft of property valued, in the aggregate, between $20,000 and $100,000, assessed punishment at ten years' confinement and a $10,000 fine, and recommended community supervision.   See Tex. Penal Code Ann. § 31.03(e)(5) (Vernon Supp.2009).   As a condition of Beatty's community supervision, the trial court required Beatty to serve 180 days in the Harris County jail.   On appeal, Beatty contends that:  (1) article 42.12, section 12 of the Code of Criminal Procedure, which allows a trial judge to impose a 180 day confinement period as a condition of community supervision, violates Apprendi v. New Jersey and Blakely v. Washington ;  (2) the trial court erred by including an instruction on conspiracy in the written charge because the State presented no evidence that Beatty agreed with another person to commit theft;  and (3) the trial court erred by denying Beatty's motion for instructed verdict because the State presented no evidence that Beatty committed theft.   We hold that (1) the State presented legally sufficient evidence that Beatty committed theft;  (2) the trial court appropriately included an instruction on conspiracy in the charge because the State presented some evidence that Beatty entered into an agreement to commit theft;  and (3) Beatty waived his challenge to the terms of his community supervision because he did not object at the time the trial court imposed the conditions.   We therefore affirm.

Background

In early 2000, Kenneth Beatty became the executive director of the Sickle Cell Association of the Texas Gulf Coast (“SCA”), a small charity which, among other functions, raises funds to educate members of the public and to help prevent and treat sickle cell disease.   Formerly employed at the United Way, Beatty in turn hired Carlean Cruse, who had formerly worked for him at the United Way, as financial secretary, to replace the existing financial secretary, who he fired.   SCA is an affiliate of the United Way, and former SCA board members testified that the United Way provides approximately fifty to sixty percent of SCA's annual budget of $600,000, with the remainder of the budget coming from various fund-raising events such as an annual gala, golf tournament, and fashion show.   SCA had an accountant, Selwyn Blanchard, and the United Way required SCA to undergo an annual financial audit.   At the SCA board meetings, board members received financial reports, usually a spreadsheet describing income and expenses, prepared by an SCA employee.   According to former SCA board president Dr. John Codwell, before Beatty's tenure as executive director, board members would co-sign large checks;  however, after Beatty took over the position, either Beatty or Cruse signed all checks, with no signatures by the board members.   Blanchard testified that, before Beatty, SCA employees always kept backup data for unusual expenditures and he received the original bank statements and copies of cancelled checks for his monthly reports.   After Beatty became executive director, Blanchard merely received copies of bank statements and check stubs, pre-coded by Cruse to indicate the purpose for the expenditure.   Codwell and former board member Rhondal Jenkins testified that, in late 2003, the board began to discuss financial problems of the agency, including concerns that bills were not being paid.

The board considered the 2004 gala, which netted around $100,000, to be a success;  however, shortly after the gala, Beatty informed the board that SCA was having financial problems, which jeopardized payroll and the ability to finance the annual summer camp program for children with sickle cell disease.   Codwell, Jenkins, and former board members Tamla Wilson and Anthony West all testified that, at this point, they began requesting more detailed financial reports and asked to see the actual financial records and not merely summaries prepared by SCA employees.   For a period of several months, board members requested financial documents, but Beatty never provided any documents, even though he promised on at least two occasions that he would bring the documents with him to meetings.   The board scheduled its annual retreat and strategic planning session for Saturday, November 13, 2004.   On Friday, Beatty, who promised to bring SCA's financial records to the retreat, faxed his resignation letter to Codwell.   Cruse testified that she gathered the relevant financial records and left them in a box on her desk on Thursday, but when she arrived for the retreat on Saturday morning, the box had disappeared.   Codwell and West testified that they both searched the SCA office and could not find any bank records, board minutes, or any kind of financial records for 2000 through 2004.

Jennifer Browning took over the position of executive director in February 2005 and she could not find any organized financial records.   She testified that, almost immediately, she began receiving phone calls from bill collectors regarding past due bills and large delinquencies on credit cards issued to SCA. According to Browning, she also could not find any credit card records or board minutes at the SCA office.

David Pilant, a fraud examiner with the Harris County District Attorney's Office, testified on behalf of the State regarding SCA's financial records.   During Beatty's tenure as executive director, SCA issued almost $182,000 in “over-payroll” checks, checks written outside the official payroll system, to Beatty, Cruse, and the other employees.   Beatty personally received $18,063.18 from over-payroll checks.   According to Pilant, no reimbursement records existed, and he was therefore unable to determine the percentage of over-payroll checks that were actually written for the appropriate purpose of reimbursement for personal funds spent on SCA-related matters.   Further, although most checks did not indicate their purpose, Pilant found that, for the checks that did have an indication, that indication “did not necessarily relate to how the check was actually used.”   For example, Pilant traced a check payable to petty cash directly into an employee's bank account.

Pilant also testified that four employees, Beatty, Cruse, Adrian LeBlanc, and Carolyn Hayes, all possessed credit cards issued to SCA, and these four employees charged over $186,000 on these credit cards.   Beatty, in particular, charged approximately $124,000.   Based on his review of the credit card records, Pilant determined that SCA actually paid $89,877 of Beatty's credit card charges.   Pilant stated that another source paid $5600 to the credit card company on Beatty's card.   Additionally, SCA's bank records demonstrated that Beatty deposited $4000 into SCA's account, although Pilant could not identify the purpose of this payment.   Pilant estimated that, after considering the over-payroll checks issued to Beatty, his charges on the SCA credit cards, and the amount Beatty paid to SCA, Beatty's net gain from these transactions was $134,982.

Codwell and Jenkins were unaware that Beatty procured credit cards in SCA's name for the staff, and that they had used these cards for personal expenses, until Browning started receiving the bills for these cards.   Codwell stated that Beatty did not have board permission to use agency credit cards for personal use, and Beatty never sought permission from the board.   Codwell was also unaware that Beatty and Cruse wrote checks to themselves and the other employees for amounts over their regular paychecks.   Beatty never discussed these expenditures with the board either, and the employees did not have permission to receive over-payroll checks, although, with proper documentation, they could be reimbursed if they used personal funds for small SCA-related expenses.   Wilson and West both testified that they were unaware that SCA had any credit card accounts and Beatty never discussed employees using the credit cards with the board, especially not for personal expenses.

Beatty testified on his own behalf and admitted that he used SCA credit cards to make personal expenses.   At first, Beatty admitted making $52,055.61 worth of personal charges on SCA's credit cards, though he later revised that estimate to $37,130.16, which he felt was a “more accurate reflection” of his personal charges.   Beatty also claimed that he was a personal guarantor on the credit cards, was currently negotiating with the credit card companies and SCA to determine his balance and “work something out” regarding payment, and he always had the expectation that he would be responsible for the amount of his personal charges.   When asked by the prosecutor why he had not made any payments on the credit cards, even though the last charge was more than three years before trial, Beatty stated that he was waiting to confirm his balance in the civil lawsuit with SCA. Beatty also admitted that the board knew of at least one credit card, but he never informed the board of any additional credit cards, or that he allowed the employees to use SCA credit cards to make personal purchases.

Beatty also admitted that he signed a letter to Whitney Bank, asking for credit cards for Cruse and LeBlanc and stating that the board approved adding Cruse and LeBlanc as staff members eligible for credit cards, even though the board minutes did not reflect that the board ever approved these cards.   Beatty also stated that employees could receive emergency loans or salary advances, in the form of an over-payroll check, and employees had to properly document the request and take a deduction from their paycheck.   The over-payroll checks issued to Beatty, for example, were for “legitimate expenses or monies owed to him.”   Beatty did not authorize any over-payroll checks that were not owed to or earned by the employee, and, to his knowledge, proper documentation existed for these payments.   Beatty denied committing theft and testified that, at the time he made the personal charges, he intended to reimburse SCA.

Carlean Cruse testified that, as a result of her conduct while she was financial secretary of SCA, she pleaded guilty to first degree felony theft and owed SCA $78,681.21 in restitution.   Cruse regularly used an SCA credit card for personal expenses, including casino trips to Louisiana, clothing stores, and bills.   Cruse stated that Beatty informed the staff that they could use their SCA credit cards for personal charges, but they needed to reimburse SCA for these expenses.   Cruse attended board meetings, and never heard the board and Beatty discuss the additional credit cards and the over-payroll checks.   Although she paid SCA's bills, and had authorization to sign Beatty's name on checks, Beatty decided how much to pay on each SCA credit card in a given month.

Cruse further testified that Beatty instructed her to miscode financial information given to SCA accountant Blanchard to keep him from ascertaining the purpose of the over-payroll checks and the use of SCA credit cards for personal expenses.   At Beatty's direction, Cruse falsified a report to the board to make it appear as though SCA received a $5000 to $10,000 grant, when they had not received such funding.   Beatty also instructed Cruse to falsify information in the board minutes given to SCA auditors Grant Thornton and the United Way to remove negative information about Beatty.   Cruse acknowledged that, at Beatty's request, she misrepresented SCA's financial condition to the board.   Cruse also stated that she wrote checks payable to petty cash or reimbursements, even though she knew the checks were intended for other purposes, and she discussed almost every check she wrote with Beatty.

At the close of the State's case in chief, Beatty moved for an instructed verdict, contending that:  (1) although the indictment alleged that Beatty stole a vehicle from SCA, the State presented no evidence of this theft;  (2) the State failed to prove which transactions were impermissible, and therefore failed to prove that Beatty acted with intent to deprive SCA of its property;  (3) the State failed to prove that Beatty acted pursuant to a scheme or course of conduct;  (4) the State failed to prove that Beatty made an agreement with another person to commit theft;  and (5) the State failed to prove the aggregate nature of the offense, and thus limitations barred consideration of any actions taken by Beatty from 2000 to the early part of 2002.   The trial court denied this motion.   At the close of the evidence, Beatty re-urged his instructed verdict motion, contending that, because he established that some credit card charges and over-payroll checks were legitimate, the State failed to prove that Beatty stole over $100,000 from SCA, which is the minimum aggregate amount for second degree theft.   Defense counsel also stated:

I guess because Mr. Beatty stood up and admitted in one document, I think, about $50,000, another document around $30,000 in credit card charges, I guess the argument could be made at this point in time that there might be some evidence to go to this jury on a third degree felony offense.

The trial court again denied Beatty's motion.   Beatty also objected to the inclusion of an instruction on conspiracy in the written charge, arguing that the State had produced no evidence that Beatty agreed with another person to commit theft.   The trial court overruled this objection and included the instruction in the charge.

The jury assessed punishment at ten years' confinement and a $10,000 fine, and recommended that the trial judge place Beatty on community supervision and probate the fine.   The trial court adopted the jury's recommendation, probated the fine, and placed Beatty on community supervision for ten years.   On March 25, 2008, Beatty and the trial court both signed the conditions of community supervision, one of which required Beatty to serve 180 days in the Harris County Jail. Beatty did not object at the time the trial court imposed the conditions and he agreed to them.   On April 23, within the time period for filing a motion for new trial, Beatty filed a written objection to this condition, contending that article 42.12, section 12 of the Code of Criminal Procedure, which authorizes a trial court to require up to 180 days' confinement as a condition of community supervision, violates Apprendi v. New Jersey and Blakely v. Washington, because it impermissibly allows a trial court to increase a defendant's sentence beyond the jury's punishment finding.   The trial court overruled this motion.

Discussion

Sufficiency of Evidence of Theft

Beatty contends that the trial court erred by denying his motion for an instructed verdict because the State failed to prove which of Beatty's actions were illegal and presented no evidence that Beatty stole “cash money” belonging to SCA. We treat an issue challenging the trial court's denial of an instructed verdict as a challenge to the legal sufficiency of the evidence.  Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App.1996).   In a legal sufficiency review, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Salinas v. State, 163 S.W.3d 734, 737 (Tex.Crim.App.2005).   The fact-finder is the sole judge of the weight and credibility of the evidence.  Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000), overruled on other grounds by Laster v. State, 275 S.W.3d 512 (Tex.Crim.App.2009).   The fact-finder may choose to believe a witness even if contradictory evidence is introduced, and may believe some or all of a witness's testimony.   See Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986).   We may not reevaluate the weight and credibility of the evidence and substitute our judgment for that of the fact-finder.  Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999).   We resolve any inconsistencies in the evidence in favor of the verdict.  Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000).

The grand jury indicted Beatty for first degree felony theft, and the written charge contained lesser-included offense instructions for second degree, third degree, and state jail felony theft of property.   The jury convicted Beatty of third degree felony theft of property.   A person commits the offense of third degree felony theft of property if, with the intent to deprive the owner of property, he unlawfully appropriates property with an aggregate value between $20,000 and $100,000.   See Tex. Penal Code Ann. §§ 31.03(a), (e)(5) (Vernon Supp.2009);  see also id. § 31.09 (Vernon 2003) (allowing aggregation of amounts when obtained pursuant to “one scheme or continuing course of conduct”).   The Penal Code defines “deprive” as “withhold[ing] property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner” or “dispos[ing] of property in a manner that makes recovery of the property by the owner unlikely.”   Id. §§ 31.01(2)(A), (C) (Vernon Supp.2009).   Appropriation of property is unlawful if it is done “without the owner's effective consent.”   Id. § 31.03(b)(1);  see also id. § 31.01(3) (defining “effective consent”).   The State is not required to present evidence that the defendant stole every piece of property alleged in the indictment, as long as the State presents sufficient evidence to satisfy the aggregate's minimum value.   See Dickens v. State, 981 S.W.2d 186, 188 n.4 (Tex.Crim.App.1998) (“[T]he State need not prove each constituent theft as long as it demonstrates that enough of the property described in the indictment was stolen to satisfy the aggregated value allegation.”);  Lehman v. State, 792 S.W.2d 82, 83-88 (Tex.Crim.App.1990).

Beatty specifically contends that the State did not prove that Beatty stole property from SCA because:  (1) the State failed to prove which over-payroll checks and credit card charges were impermissible;  (2) some SCA board members testified that the Beatty did not need the Board's approval to write over-payroll checks or checks for reimbursement;  and (3) Beatty's credit card charges were not “money,” as alleged in the indictment.   Beatty points to testimony from three board members, Jenkins, West, and Wilson, which indicated that Beatty did not need board approval to issue reimbursement checks and that some of the credit card charges and checks were for legitimate business purposes.   In determining whether the trial court properly denied Beatty's instructed verdict motion, our focus is not on whether the evidence indicates that Beatty had permission to write over-payroll checks and use SCA credit cards for personal purposes.   Rather, we review the evidence to determine whether the State produced some evidence from which a rational jury could determine beyond a reasonable doubt that Beatty unlawfully appropriated between $20,000 and $100,000 worth of SCA's property, with the intent to permanently deprive SCA of that property.   See Williams, 937 S.W.2d at 482;  Salinas, 163 S.W.3d at 737;  Tex. Penal Code Ann. §§ 31.03(a), (e)(5).   According to Codwell, Jenkins and Wilson, the board never discussed the additional credit cards or over-payroll checks at any meetings, and Beatty and the employees did not have board permission to use SCA credit cards for personal use or to issue over-payroll checks.

The trial court admitted the credit card records for SCA, which indicated approximately $186,000 in charges from 2000 to 2004.   The charges included expenditures at clothing stores, restaurants, and trips to Mexico, where SCA had no offices, conferences, or clients.   Codwell conceded that the credit card records could include some legitimate SCA-related expenses, but based on his review of the records, the majority of the charges “could not have been legitimate expense[s]” for SCA. When defense counsel asked Wilson if the records included legitimate SCA expenses, she stated that she was surprised SCA even had credit cards, as credit cards were never discussed during board meetings, so “it would be very hard for [her] to say that [the charges] were Sickle Cell related charges.”   According to Wilson, for the charges to be legitimate, Beatty or Cruse would have to present the charges to the board for approval, which never happened.   Similarly, Wilson testified that any over-payroll checks were “not appropriate in that they were not approved by the board,” although she acknowledged that small business-related reimbursements would not need board approval if the employee submitted proper documentation.

Beatty testified on his own behalf and acknowledged that he used SCA credit cards for personal purchases.   According to Beatty, he was the personal guarantor on the credit cards and was, at the time of trial, in contact with the credit card companies regarding the outstanding balance.   Beatty acknowledged that he should have reimbursed SCA, and he submitted a summary of personal charges for which he felt responsible.   This summary reflected that Beatty charged $52,055.61 in personal expenses on SCA's credit cards.   Beatty later offered a revised summary, which he felt “more accurately reflect[ed]” his personal charges.   According to this second summary, Beatty admitted charging $37,130.16 in personal expenses on SCA's credit cards.   He admitted that the board minutes did not include any discussions of the additional credit cards and over-payroll checks.   Beatty also admitted writing a letter to Whitney Bank, stating that the board approved adding Cruse and LeBlanc as staff eligible for credit card accounts, even though the board minutes did not reflect that such approval took place and Beatty did not recall ever discussing credit cards with the board.

Beatty contends that, because he was a personal guarantor on the credit cards, the debt he incurred was not theft of SCA's property.   We have previously held that “[t]heft convictions resulting from otherwise contractual civil disputes may warrant reversal for insufficient evidence where there is no evidence supporting the requisite criminal intent.”  Ellis v. State, 877 S.W.2d 380, 383 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd) (citing Peterson v. State, 645 S.W.2d 807, 811 (Tex.Crim.App.1983)).   We noted that criminal intent may be inferred from the surrounding circumstances, and in Ellis, which involved payments made to Ellis so he could assist individuals with credit problems in finding vehicles, a rational jury “could have found that [Ellis] had no intention of fulfilling his contractual obligations, since he never did so, and that his promises to the complainants were merely a ruse to accomplish theft by deception.”  Id. Similarly, here, although Beatty testified that he was personal guarantor on the credit cards and he knew that he was ultimately responsible for his personal charges, the State presented evidence that Beatty charged a large amount of personal expenses on SCA's credit cards and did not pay his balance.   Beatty continually failed to produce financial records, including credit card records, and when requested by the board to do so, the records disappeared.   Moreover, he instructed Cruse to falsify financial information given to SCA accountant Blanchard so he would not know that Beatty and the other employees were using the SCA credit cards for personal charges.   Based upon this evidence, a jury reasonably could conclude that Beatty had no intention of “fulfilling his contractual obligation” by paying the credit card companies or reimbursing SCA for his personal charges.   See id.

Beatty additionally contends that the purchases made with SCA's credit cards and the debt he incurred were not “money” as the State alleged in the indictment.   According to Beatty, because of this variance, the State did not prove that Beatty stole “cash money” belonging to SCA. The indictment alleged that:

KENNETH GARRETT BEATTY ․ on or about VARIOUS DATES BETWEEN JANUARY 4, 2000 AND DECEMBER 31, 2004, did then and there unlawfully, pursuant to one scheme and continuing course of conduct acquire and otherwise exercise control over property other than real property, namely money and/or one automobile, of an aggregate amount and value of two hundred thousand dollars or more, which property was owned by the Sickle Cell Association of the Texas Gulf Coast․

A “variance” occurs when there is a discrepancy between the allegations in the indictment and the evidence offered at trial.  Gollihar v. State, 46 S.W.3d 243, 246 (Tex.Crim.App.2001).   We treat variance claims as insufficiency of evidence problems.  Id. at 247.   Only a material variance renders the evidence insufficient.  Id. at 257.

We have held that no variance exists between an indictment “alleging conversion of cash and proof showing conversion of a check.”  Mueshler v. State, 178 S.W.3d 151, 154 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd);  Grogen v. State, 745 S.W.2d 450, 450-51 (Tex.App.-Houston [1st Dist.] 1988, no pet.).   We relied on the Court of Criminal Appeals' decision in Kirkpatrick v. State, which held that no variance existed when the indictment alleged conversion of cash and the evidence at trial showed conversion of checks because “money was obtained by a false pretext, through the instrumentality of the check.”  515 S.W.2d 289, 293 (Tex.Crim.App.1974) (quoting Rick v. State, 207 S.W.2d 629, 630 (Tex.Crim.App.1947)).   Here, Beatty made, by his own admission, between $37,000 and $53,000 worth of personal charges on SCA's credit cards.   Pilant testified that, out of the $124,000 in charges made to SCA credit cards by Beatty, SCA paid approximately $89,000.   Although these transactions did not involve cash money, Beatty's use of SCA's credit cards amounts to an instrumentality to misappropriate SCA funds to pay for his personal expenses.   We follow Mueshler, and hold that no variance exists between the indictment-which alleged that Beatty stole “money”-and the proof at trial-which demonstrated that Beatty's use of SCA's credit cards for personal expenses deprived SCA of its cash money.

When viewing the evidence in the light most favorable to the verdict, we hold that a rational jury could have found beyond a reasonable doubt that Beatty unlawfully appropriated between $20,000 and $100,000 of SCA's property with the intent to deprive SCA of that property.   Thus, the evidence is legally sufficient to support Beatty's conviction, and the trial court correctly denied Beatty's instructed verdict motion.

Charge Instruction on Conspiracy

Beatty next contends that the trial court erred by overruling his objection to the inclusion of a conspiracy instruction in the written charge because the State presented no evidence that Beatty made an agreement with anyone else to commit theft from SCA. When we review a jury charge, we must first determine whether error exists, and if so, we must determine whether the error is harmful.   See Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App.2005).   If, as here, the defendant properly objects to the charge, we will reverse the conviction if the error constitutes “some harm.”   See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985).   The Code of Criminal Procedure requires the trial court to deliver to the jury a written charge “distinctly setting forth the law applicable to the case.”  Tex.Code Crim. Proc. Ann. art. 36.14 (Vernon 2007);  Gray v. State, 152 S.W.3d 125, 127 (Tex.Crim.App.2004) (“Relying on [article 36.14], we have held that a trial court is required to fully instruct the jury on the law applicable to the case ․”);  see also Trevino v. State, 100 S.W.3d 232, 238 (Tex.Crim.App.2003) (“We have stated that a jury charge pursuant to Section 8.04, like the one pursuant to Section 20.04, should be given if it is raised by the evidence, indicating that ‘some’ evidence is sufficient.”).   Therefore, in determining whether the trial court erroneously included the conspiracy instruction, we examine the record to determine if the State produced some evidence of each element of conspiracy.

A person commits criminal conspiracy if, with the intent that a felony be committed, the person (1) agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense;  and (2) one or more of them performs an overt act in pursuance of the agreement.  Tex. Penal Code Ann. § 15.02(a) (Vernon 2003).   An agreement that constitutes a conspiracy may be inferred from the parties' acts.   Id. § 15.02(b);  see Rhoten v. State, 299 S.W.3d 349, 351 (Tex.App.-Texarkana 2009, no pet.)   (“Since direct evidence of intent is rarely available, the existence of a conspiracy can be proven through circumstantial evidence.”);  Williams v. State, 82 S.W.3d 557, 564-65 (Tex.App.-San Antonio 2002, pet. ref'd) (“Conspiracy is seldom shown by direct evidence but often must be proved by circumstances from which the existence of the conspiracy is logically deducible.”).

Carlean Cruse testified that, as a result of her conduct while at SCA, she pleaded guilty to theft and owed SCA over $78,000 in restitution.   Cruse stated that Beatty instructed her to intentionally miscode financial information sent to SCA accountant Blanchard to conceal the personal use of company credit cards.   Cruse wrote every check at Beatty's direction and discussed almost every check with him, including checks payable to petty cash or for reimbursements, even though she knew that these checks were written for other purposes.   Beatty also instructed Cruse to falsify information given to SCA's board by changing financial documents to show that the organization received a grant when it had not.   At Beatty's direction, Cruse also falsified board minutes given to the United Way and to SCA auditors Grant Thornton to remove references to negative information about Beatty.   Former board president Codwell testified that, after Beatty resigned, he obtained audit records from Grant Thornton which included copies of board minutes from a meeting that never occurred.   Codwell also discovered that portions of board minutes that called Beatty's conduct into question had been deleted from the minutes provided to Grant Thornton.   Cruse acknowledged that by the end of 2004, board members routinely received altered financial information at board meetings and she misrepresented SCA's financial condition to the board on “more than one occasion.”

Beatty, Cruse, LeBlanc, and Hayes charged over $186,000 on their SCA credit cards, and SCA paid approximately $130,000 of these charges.   Beatty and Cruse also issued approximately $182,000 in “over-payroll” checks to various employees, including themselves.   Cruse testified that Beatty “directed” every check that she wrote, and he made the decision regarding how much to pay on each of SCA's credit cards each month.   Codwell and other board members testified that they were unaware of the additional credit cards and the over-payroll checks, and they did not authorize the additional cards, their use for personal expenses, or the over-payroll checks.   Cruse stated that she regularly attended board meetings and she never mentioned, nor heard Beatty mention, the multiple credit cards given to the employees.

We conclude that the State produced some evidence from which the jury could reasonably infer that Beatty and Cruse agreed to commit theft from SCA and committed overt acts in furtherance of that agreement.   We therefore hold that the trial court did not err by instructing the jury on conspiracy.

Objection to Condition of Community Supervision

Beatty further contends that article 42.12, section 12 of the Code of Criminal Procedure, which authorizes the trial court to impose 180 days' confinement as a condition of community supervision, allows the trial court to increase his sentence beyond the statutory maximum in violation of the Sixth Amendment.   See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63 (2000);  Blakely v. Washington, 542 U.S. 296, 305, 124 S.Ct. 2531, 2538 (2004).   The Code of Criminal Procedure defines “community supervision” as involving a suspension of the sentence.  Tex.Code Crim. Proc. Ann. art. 42.12, § 2(2) (Vernon Supp.2009).   Community supervision is an arrangement in lieu of the sentence-it is not part of the sentence.  Speth v. State, 6 S.W.3d 530, 532 (Tex.Crim.App.1999).   A trial court's decision to grant community supervision is “wholly discretionary” and the trial court also has broad discretion to determine the conditions of community supervision.  Id. at 533.   In Speth, the Court of Criminal Appeals stated that “[a]n award of community supervision is not a right, but a contractual privilege, and conditions thereof are terms of the contract entered into between the trial court and the defendant.”  Id. at 534.   If the defendant does not object to the community supervision conditions, those conditions are “affirmatively accepted as terms of the contract” and the defendant waives “any rights encroached upon by the terms of the contract.”  Id. Thus, “[a] defendant who benefits from the contractual privilege of probation ․ must complain at trial to conditions he finds objectionable.”  Id.

We have previously held that a defendant who first complains on appeal that a community supervision condition of 180 days' confinement violates Apprendi does not preserve the complaint for appellate review.   See Ledet v. State, 177 S.W.3d 213, 221 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd);  see also Ivey v. State, 16 S.W.3d 75, 76 (Tex.App.-Houston [1st Dist.] 2000, no pet.).   The Fort Worth Court of Appeals noted that, under Speth, we cannot hear a challenge to the validity of a community supervision condition unless the defendant objected to that condition at the time the trial court imposed the condition, presumably at sentencing.  Lopez v. State, 46 S.W.3d 476, 480 (Tex.App.-Fort Worth 2001, pet. ref'd).   The Court of Criminal Appeals recognized an exception to this general rule of preservation when the defendant does not have the opportunity to object to the community supervision condition at the time the trial court imposes the condition.  Rickels v. State, 108 S.W.3d 900, 902 (Tex.Crim.App.2003).   In Rickels, the trial court modified a probation condition without a hearing and Rickels had no opportunity to object to this modification in the trial court.  Id. In this circumstance, the Court of Criminal Appeals addressed the merits of Rickels's appeal, even though he raised the issue for the first time on appeal.  Id.;  see also Pearson v. State, 994 S.W.2d 176, 179 (Tex.Crim.App.1999) (stating that when defendant does not have opportunity to object at sentencing hearing, a motion for new trial preserves error).

Here, Beatty and the trial judge both signed the conditions of community supervision and Beatty's fingerprint appears on the document.   Beatty did not object to this condition.   About a month later, Beatty filed a written objection, contending that this condition violates Apprendi and Blakely, but nothing in the record indicates that Beatty lacked an opportunity to object at the time the trial court imposed the community supervision conditions and he signed the order.   We therefore hold that Beatty's written objection, filed after the trial court imposed the community supervision conditions, fails to preserve Beatty's contention for appellate review.

Conclusion

We hold that the State presented legally sufficient evidence that (1) Beatty unlawfully appropriated between $20,000 and $100,000 of SCA's property with the intent to deprive SCA of that property and (2) Beatty and Cruse agreed to commit theft from SCA. Therefore, the trial court correctly denied Beatty's motion for an instructed verdict and included a written jury instruction on conspiracy.   We further hold that, because Beatty did not object to the terms of community supervision at the time the trial court imposed the conditions, his Apprendi and Blakely motion failed to preserve the issue for appellate review.   We therefore affirm.

Jane Bland Justice

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