Justin Daniel Roberts v. State ( 2015 )

ACCEPTED
05-15-00379-CR
FIFTH COURT OF APPEALS
DALLAS, TEXAS
9/22/2015 9:53:31 AM
LISA MATZ
CLERK
In the Court of Appeals for the
Fifth District of Texas at Dallas
FILED IN
5th COURT OF APPEALS
JUSTIN DALE ROBERTS, § DALLAS, TEXAS
Appellant § 9/22/2015 9:53:31 AM
§ LISA MATZ
v. § No. 05-15-00379-CR Clerk
§
THE STATE OF TEXAS, §
Appellee §
Appealed from Cause Number 199-80668-2013 in the 416th Judicial District Court
of Collin County, Texas, the Honorable Angela Tucker, Judge Presiding.
§§§
STATE’S BRIEF
§§§
GREG WILLIS
Criminal District Attorney
Collin County, Texas
JOHN R. ROLATER, JR.
Assistant Criminal District Attorney
Chief of the Appellate Division
Oral argument is requested, ANDREA L. WESTERFELD
but only if Appellant also Assistant Criminal District Attorney
requests oral argument. 2100 Bloomdale Rd., Suite 200
McKinney, Texas 75071
(972) 548-4323
FAX (214) 491-4860
State Bar No. 24042143
awesterfeld@co.collin.tx.us
THOMAS ASHWORTH & CALLI
BAILEY
Assistant Criminal District Attorneys
TABLE OF CONTENTS
TABLE OF CONTENTS ....................................................................................... i
INDEX OF AUTHORITIES ................................................................................ iii
STATEMENT REGARDING ORAL ARGUMENT ............................................1
STATEMENT OF THE CASE ..............................................................................1
STATEMENT OF FACTS .....................................................................................1
The business ........................................................................................................1
The fraud .............................................................................................................3
The defense .........................................................................................................5
SUMMARY OF THE STATE’S ARGUMENTS .................................................7
STATE’S REPLY TO APPELLANT’S SOLE ISSUE
(EFFECTIVENESS OF REPRESENTATION) ....................................................8
Appellant has not presented an adequate record to assess his
complaint because he offered no evidence of counsel’s strategy. It
may be a valid trial strategy for Appellant to admit his past criminal
history, even if it might not otherwise be admissible. Furthermore,
Appellant has not shown the result of the proceeding would have been
different because the admission could have enhanced rather than
detracted from his credibility, such as showing his honesty or showing
that he had no history of fraud-related offenses. Additionally, the
result would not have been different because, even if Appellant’s
testimony was believed in its entirety, it still showed he was guilty of
the offense.
Standard of Review: ............................................................................................8
Relevant Facts: ....................................................................................................9
Argument & Authorities: ..................................................................................10
i
PRAYER...............................................................................................................15
CERTIFICATE OF SERVICE .............................................................................16
CERTIFICATE OF COMPLIANCE ...................................................................16
ii
INDEX OF AUTHORITIES
Cases
Cannon v. State,
252 S.W.3d 342 (Tex. Crim. App. 2008) .............................................................10
Ex parte Ellis,
233 S.W.3d 324 (Tex. Crim. App. 2007) ............................................................11
Hernandez v. State,
988 S.W.2d 770 (Tex. Crim. App. 1999) ...............................................................8
Jackson v. State,
877 S.W.2d 768 (Tex. Crim. App. 1994) ...................................................... 10, 12
Jaramillo v. State,
No. 04-02-00544-CR, 2003 WL 22491511
(Tex. App.—San Antonio Nov. 5, 2003, no pet.)
(not designated for publication) ............................................................................11
Lopez v. State,
343 S.W.3d 137 (Tex. Crim. App. 2011) ...............................................................9
Ray v. State,
No. 12-10-00365-CR, 2012 WL 690317
(Tex. App.—Tyler Feb. 29, 2012, no pet.)
(not designated for publication) ............................................................................11
Strickland v. Washington,
466 U.S. 668 (1984) .........................................................................................8, 10
Thompson v. State,
9 S.W.3d 808 (Tex. Crim. App. 1999) ...............................................................8, 9
West v. State,
Nos. 05-02-00976—77-CR, 2003 WL 1131367
(Tex. App.—Dallas Mar. 13, 2003, no pet.)
(not designated for publication) ............................................................................11
iii
Williamson v. State,
104 S.W.3d 115 (Tex. App.—Texarkana 2003, pet. ref'd) ..................................11
iv
STATEMENT REGARDING ORAL ARGUMENT
The State does not believe oral argument will assist the Court in developing
the issues in this case. However, if oral argument is granted to Appellant, the State
requests the opportunity to respond.
STATEMENT OF THE CASE
Justin Roberts (“Appellant”) was charged by indictment with one count of
engaging in organized criminal activity, one count of money laundering, and three
counts of forgery of a contract or commercial instrument. CR 15. Appellant
pleaded not guilty before a jury. 2 RR 110. The jury convicted him of all counts,
and the trial court sentenced Appellant to four years in prison on Counts I and II
and two years in the state jail on Counts III, IV, and V, to run concurrently. CR 77-
81, 84, 87, 90; 4 RR 26-27, 56.
STATEMENT OF FACTS
Appellant and two compatriots set up paperwork to falsely hold themselves
out as partners in their employer’s company and deposited thousands of dollars of
checks made out to their employer in their false bank accounts.
The business
Jason Earnhardt was the owner of Ernhardt Restoration & Roofing, a roof
repair company he and his wife founded in 2010. 2 RR 114-16. Their business
1
model involved tracking areas of hail damage and sending salesmen to knock on
doors. 2 RR 116-17. In May 2012, Earnhardt Roofing employed approximately
forty salesmen or project managers, who were responsible for contacting
customers, inspecting roofs for damage, getting a contract signed, assisting the
customer in filing insurance claims, and collecting checks from the customer
before repair work actually began. 2 RR 118-19. Salesmen were paid a
commission of whatever projects they completed. 2 RR 134-35. Employees were
authorized to perform “side work”—small projects such as repairing a fence that a
customer might want completed at the same time as their roof replacement—but
those projects were still required to be submitted to the office. 2 RR 190.
In May 2012, Earnhardt hired Ron Robey as a project manager. 2 RR 128. In
return, Robey recruited a number of additional employees, including Brian White
and Appellant. 2 RR 137; 3 RR 22. But then Earnhardt noticed that money was
going unaccounted for and contracts were made but never paid on. 2 RR 153. Then
in August, the company’s telephone and email accounts were flooded by
communications from all over the country, making so many calls and emails that
no business communications could take place. 2 RR 153. Earnhardt discovered that
someone had been listing his business’s contact information in Craigslist ads all
over the country, using ads that would generate many responses such as advertising
expensive items for free or job postings. 2 RR 155-56; 3 RR 89-90. The company
2
had to shut down completely for sixty days because of the flood of
communications. 2 RR 156. Earnhardt learned that Robey, White, and Appellant
were responsible for the Craigslist postings and obtained a recording in which
Robey and White talked about the Craigslist postings. 2 RR 159; State’s Exhibit
14.
Shortly after the police attempted to contact Robey, White, and Appellant
about the Craigslist postings, in early September, Earnhardt’s business was broken
into. 2 RR 140; 3 RR 102. Nothing valuable was taken, only a filing cabinet and
old computer towers with electronic records. 2 RR 140-41. But the records would
be valuable to anyone trying to start a roofing company, and the loss of them
crippled Earnhardt Roofing because they had no way of knowing what contracts
had been signed. 2 RR 143. The break-in cost Earnhardt Roofing approximately
$13.8 million dollars in lost revenue. 2 RR 143. Earnhardt was not able to keep the
business afloat and had to shut down. 2 RR 143.
The fraud
During the police investigation into the Craigslist postings, Detective Finks
discovered that Robey, White, and Appellant had filed an Assumed Name
Certificate, also called a “Doing Business As” or “DBA,” under the name of
Earnhardt Roofing & Restoration. 3 RR 93; SX 8. One use of such a certificate is
to allow a person to open a bank account under a company name. 3 RR 69.
3
Obtaining a certificate only required a person to apply and swear that they were the
owners of the business, not provide any kind of proof of ownership. 3 RR 66-67.
Robey, White, and Appellant filed their Earnhardt Roofing DBA in Collin County
on July 30, 2012, while Earnhardt’s company was still operating in Dallas County.
3 RR 69; SX8. They subsequently used the DBA to open two bank accounts under
the name of Earnhardt Roofing at Woodforest National Bank and JPMorgan Chase
Bank, listing themselves as partners of the company. 2 RR 171-72; SX 9, 10.
Robey, White, and Appellant then deposited the checks they received for
Earnhardt Roofing customers into their own bank accounts rather than turning
them over to Earnhardt. 2 RR 173-74. At least $38,000 in checks were deposited
into the fictitious accounts rather than the genuine business, all during the time the
genuine Earnhardt Roofing was unable to respond to or contact customers because
of the Craigslist attack. 2 RR 176. Earnhardt never gave Robey, White, or
Appellant permission to file the DBA or open any bank accounts under the
Earnhardt Roofing name. 2 RR 128, 152, 157, 172. Homeowners Inderjit Sethi,
Siva Sankaramanchi, and Jessica Carlton all testified that Appellant solicited
business from them, wearing the Earnhardt Roofing uniform and claiming he
worked for Earnhardt Roofing. 3 RR 38-40, 52-53, 71, 74, 78. All three researched
the company online and with the Better Business Bureau and were reassured that it
was a legitimate company. 3 RR 40-41, 53. They would not have done business
4
with Appellant but for verifying the company. 2 RR 41, 53. But all three
homeowners’ checks were deposited into Appellant’s fictitious accounts. SX 9, 10.
The defense
Appellant testified at trial that he had been hired by Robey at Earnhardt
Roofing and worked there for only four months. 3 RR 118-24, 138. He started
having trouble getting paid by the company and having the company finish the jobs
he had contracted. 3 RR 142-43, 147. He claimed that he, Robey, and White had a
conversation with Earnhardt at a bar and as a result started a “business within a
business” of Earnhardt Roofing. 3 RR 149-52. Appellant admitted that they filed a
DBA under the name Earnhardt Roofing and opened two bank accounts under that
name. 3 RR 151-52. He testified that the purpose of the business within a business
was to do “side work and do our own business,” taking care of anything not
covered by the roofing insurance that the customer might want handled. 3 RR 153.
But he also began completing the roofing jobs that he claimed Earnhardt Roofing
was not completing in a timely manner and deposited those checks in the bank
accounts he, Robey, and White had opened. 3 RR 154. Appellant admitted that he
solicited jobs for his business wearing the Earnhardt Roofing uniform. 3 RR 169.
Appellant claimed that he was just “caught up in a bad situation” because
Earnhardt mismanaged funds and did not take care of customers. 3 RR 157. He
said he believed they had Earnhardt’s permission to open the business within a
5
business and were supposed to pay Earnhardt fifty percent of any profits, but they
never received any profits because Earnhardt called the police. 3 RR 151, 163. But
he also admitted that it was possible Earnhardt did not know what they were doing.
3 RR 178.
6
SUMMARY OF THE STATE’S ARGUMENTS
Appellant has not presented an adequate record to assess his complaint
because he offered no evidence of counsel’s strategy. It may be a valid trial
strategy for Appellant to admit his past criminal history, even if it might not
otherwise be admissible. Furthermore, Appellant has not shown the result of the
proceeding would have been different because the admission could have enhanced
rather than detracted from his credibility, such as showing his honesty or showing
that he had no history of fraud-related offenses. Additionally, even if Appellant’s
testimony was believed in its entirety, it still showed he was guilty of the offense.
7
STATE’S REPLY TO APPELLANT’S SOLE ISSUE
(EFFECTIVENESS OF REPRESENTATION)
Appellant complains in his sole issue on appeal that counsel was
ineffective for introducing evidence of his otherwise inadmissible
criminal history. But Appellant has not presented an adequate record
to assess his complaint because he offered no evidence of counsel’s
strategy. It may be a valid trial strategy to offer even otherwise
inadmissible evidence. Furthermore, Appellant has not shown the
result of the proceeding would have been different because the alleged
error could have enhanced rather than detracted from his credibility,
such as showing his honesty or showing that he had no history of
fraud-related offenses. Additionally, even if Appellant’s testimony
was believed in its entirety, it still showed he was guilty of the
offense.
Standard of Review:
Appellant bears the burden of establishing his ineffective assistance of
counsel claim under the two-part test of Strickland v. Washington, 466 U.S. 668
(1984). Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). He
must establish that counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms and that there is a reasonable
probability that but for counsel’s deficient performance, the result of the
proceedings would have been different. Strickland, 466 U.S. at 687-88. To
succeed, Appellant must establish both prongs of the Strickland test by a
preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
App. 1999).
8
The review of defense counsel’s actions is highly deferential and presumes
that counsel’s actions fell within the wide range of professional competence. Lopez
v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Counsel’s deficiency must
be shown clearly on the record, not through retrospective speculation. Id.
Appellant bears the burden of proof by a preponderance of the evidence.
Thompson, 9 S.W.3d at 814. It is not sufficient if Appellant merely shows, through
the benefit of hindsight, that counsel’s actions were questionable. Lopez, 343
S.W.3d at 143. The reviewing court must consider the totality of counsel’s
representation and the circumstances of each case. Id.
Relevant Facts:
At the beginning of Appellant’s testimony during the guilt/innocence phase,
counsel elicited that he had a prior criminal history. 3 RR 116. Specifically,
Appellant admitted that he pleaded guilty in Georgia to felony possession of a
controlled substance after self-medicating a work injury with an unprescribed
muscle relaxant and successfully completed probation. 3 RR 116-17. He also
testified to receiving a misdemeanor conviction in Collin County for driving while
intoxicated. 3 RR 117.
Following Appellant’s conviction, his trial counsel filed a motion for new
trial. CR 93. After current counsel was appointed, Appellant moved to withdraw
the first motion and filed a subsequent motion for new trial, alleging trial counsel’s
9
ineffectiveness. CR 106, 114, 128. Appellant attached his own affidavit to the
motion, but he did not obtain an affidavit from trial counsel or request a hearing.
CR 114, 128. The trial court denied the motion in a docket entry. CR 14.
Argument & Authorities:
Appellant has not met his burden of proving he received ineffective
assistance of counsel because he has not presented an adequate record for the Court
to review his claim and accordingly has not shown either that his counsel’s
representation was deficient or that he was prejudiced by counsel’s alleged errors.
See Strickland, 466 U.S. at 686-88. A reviewing court cannot determine that trial
counsel was ineffective where there was no record of his reasoning. Jackson v.
State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
Here, the record is not adequate to evaluate Appellant’s claim. Appellant
complains that counsel was ineffective only for introducing evidence of his
criminal history. Appellant’s Brief at 13-14. But the record does not reflect any of
counsel’s reasoning for doing so. Counsel was never given an opportunity to
explain his actions, including whether he had a strategic purpose for introducing
Appellant’s criminal history. Thus, counsel could only be found ineffective if there
could be no conceivable strategic reason for his actions. See Cannon v. State, 252
S.W.3d 342, 350 (Tex. Crim. App. 2008).
10
But it is not necessarily defective representation to introduce even otherwise
inadmissible evidence of a defendant’s criminal history. In Ex parte Ellis, the
Court of Criminal Appeals held that counsel had a sound strategic reason for
offering evidence of the defendant’s prior robbery conviction and murder charge.
233 S.W.3d 324, 334-36 (Tex. Crim. App. 2007). In Ellis, counsel used evidence
of the defendant’s criminal history to show that he had not been involved in any
previous drug-related crimes and thus was less likely to have possessed the drugs
than his co-defendant with a lengthy drug-related history. Id. This Court has also
found that having the defendant admit to his criminal history was a way of
demonstrating candor to the jury and could be a strategic reason to introduce prior
criminal history. West v. State, Nos. 05-02-00976—77-CR, 2003 WL 1131367, at
*2 (Tex. App.—Dallas Mar. 13, 2003, no pet.) (not designated for publication).
Additionally, the West court concluded that the fact that the evidence might not be
admissible “at the first instance” was irrelevant because the defense attorney “had
to plan for the event that appellant opened the door to these convictions.” Id. Other
courts have similarly found that a trial attorney may have a strategic reason for
introducing or opening the door to a defendant’s criminal history. See Williamson
v. State, 104 S.W.3d 115, 120 (Tex. App.—Texarkana 2003, pet. ref’d); Ray v.
State, No. 12-10-00365-CR, 2012 WL 690317, at *4 (Tex. App.—Tyler Feb. 29,
2012, no pet.) (not designated for publication); Jaramillo v. State, No. 04-02-
11
00544-CR, 2003 WL 22491511, at *1 (Tex. App.—San Antonio Nov. 5, 2003, no
pet.) (not designated for publication).
Thus, there are valid strategic reasons why a reasonable defense attorney
may choose to admit even otherwise inadmissible criminal history. Counsel may
have been trying to show that Appellant had no history of fraud in order to support
his claim that he was merely mistaken about whether he had permission to open his
“business within a business.” Counsel also may have been trying to show
Appellant was honest about admitting his mistakes. Indeed, counsel could have
been afraid that Appellant might inadvertently open the door to evidence of his
criminal history, and revealing that history from the beginning could have looked
more honest to the jury. Without knowing counsel’s reasoning in the instant case,
this Court cannot conclude that he was acting deficiently. See Jackson, 877 S.W.2d
at 771.
Additionally, Appellant has not shown that the result of the proceeding
would have been different but for his attorney’s alleged error. He argues that the
criminal history evidence was necessarily damaging because the case amounted to
a determination of his credibility versus Earnhardt’s. Appellant’s Brief at 14. But
as the West court concluded, discussing Appellant’s criminal history even when he
was not required to could show candor to the jury and might be considered a
positive influence on his credibility rather than a negative. And as in Ellis, the fact
12
that none of Appellant’s prior history involved fraud or theft could also have
contributed to the jury believing Appellant’s story that he was merely mistaken
about having permission, not that he was intentionally trying to defraud or cheat
Earnhardt.
Appellant also cannot show that any damage to his credibility from the
introduction of his criminal history affected the result of the proceeding when his
own testimony showed he was guilty of the charged offenses. Appellant claimed
they had Earnhardt’s permission only to do “side jobs” and their own business,
things not connected to the insurance coverage that the customer might want done.
3 RR 153. Appellant then admitted that he had accepted payment for regular roof
repair jobs that he had solicited as part of Earnhardt Roofing, not “side jobs.” 1 3
RR 154. Appellant claimed he was justified in doing so because he was the one
actually completing the jobs when Earnhardt was mismanaging the business, not
because he had permission to do so. 3 RR 154. Thus, even if the jury had believed
Appellant’s testimony about having permission to set up a franchise-type business,
he admitted that he went beyond the scope of that permission to complete and
accept payment for Earnhardt Roofing’s own contracts. His own testimony showed
1
Indeed, the three roofing contracts introduced into evidence were all signed before Appellant,
Robey, and White filed the DBA for their “business within a business,” so they were
indisputably customers of the original Earnhardt Roofing. SX 8, 11-13.
13
he was guilty, and thus any potential damage to his credibility by his criminal
history did not have an impact on the verdict.
Because the record is not adequate to show that counsel’s representation was
deficient and Appellant has not shown the result of the proceeding would have
been different but for the alleged error, Appellant has not met his burden of
proving he received ineffective assistance of counsel. His sole error should be
overruled.
14
PRAYER
Appellant’s trial was without prejudicial error. The State prays that
Appellant’s convictions and sentences be affirmed.
Respectfully submitted,
GREG WILLIS
Criminal District Attorney
Collin County, Texas
JOHN R. ROLATER, JR.
Assistant Criminal District Attorney
Chief of the Appellate Division
/s/ Andrea L. Westerfeld
ANDREA L. WESTERFELD
Assistant Criminal District Attorney
2100 Bloomdale Rd., Suite 200
McKinney, TX 75071
(972) 548-4323
FAX (214) 491-4860
State Bar No. 24042143
awesterfeld@co.collin.tx.us
15
CERTIFICATE OF SERVICE
A true copy of the State’s brief has been electronically served on counsel for
Appellant, Franklyn Mickelsen, on this, the 22nd day of September, 2015.
/s/ Andrea L. Westerfeld
Andrea L. Westerfeld
CERTIFICATE OF COMPLIANCE
This brief complies with the word limitations in Texas Rule of Appellate
Procedure 9.4(i)(2). In reliance on the word count of the computer program used to
prepare this brief, the undersigned attorney certifies that this brief contains 2,743
words, exclusive of the sections of the brief exempted by Rule 9.4(i)(1).
/s/ Andrea L. Westerfeld
Andrea L. Westerfeld
16