Coleman, Lionel Douglas v. State ( 2005 )

Affirmed and Opinion filed October 27, 2005

Affirmed and Opinion filed October 27, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00613-CR

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LIONEL DOUGLAS COLEMAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Cause No. 944,335

O P I N I O N

Appellant Lionel Douglas Coleman appeals his conviction for aggregate theft of over twenty-thousand dollars and under one-hundred-thousand dollars.^[1]  In three points of error, appellant contends that (1) the evidence is factually insufficient to sustain the guilty verdict; (2) the trial court erred in overruling appellant=s Batson challenge; and (3) the trial court erred in overruling appellant=s objection to improper jury argument about appellant=s bankruptcy.

Background

Complainant Alan Bergeron owns several restaurants in Houston, including a Denny=s on Southmore Boulevard (ASouthmore Denny=s@).   Bergeron met appellant at a management training program shortly after he acquired the Southmore Denny=s franchise; appellant, who had worked in Denny=s management for several years, was Bergeron=s instructor.  In April 2000, after Bergeron completed the training program, he hired appellant as the general manager of the Southmore Denny=s.  Deposits began to disappear from the Southmore Denny=s on April 18, 2001.  Bergeron acquired a second Denny=s near the Astrodome (AAstrodome Denny=s@) in March 2001 and transferred appellant to be manager of the Astrodome restaurant in late November 2001.  There were no missing deposits from the Southmore Denny=s after appellant=s transfer; however, deposits began to disappear from the Astrodome Denny=s on December 6, 2001.  The last missing deposit was dated April 20, 2002.  The missing deposits totaled $76,279.89.^[2]

Bergeron did not learn that any deposits were missing until April 2002, when he hired an accountant to reconcile the franchises= books. Previously, Bergeron=s father had served as Bergeron=s accountant, and Bergeron testified that there had never been any trouble with missing deposits while his father was his accountant.  However, due to a serious illness, Bergeron=s father stopped serving as accountant in the fall of 2000.  As his father=s condition grew worse, Bergeron spent an increasing amount of time away from the restaurants, and by the end of 2000, he had stopped visiting the franchises altogether.  Bergeron admitted that he was distracted from the businesses for over a year and that he had relied heavily on appellant to manage the finances while his father was ailing.  According to Bergeron, appellant was aware of Bergeron=s family situation and told him not to worry about the restaurants.  After his father died in January 2002, Bergeron once again involved himself with the franchises= finances.

At trial, there was conflicting testimony about how much control appellant exercised over the restaurants= money and how well Bergeron managed their financial records. Bergeron testified that Denny=s is primarily a cash business.  Accordingly to Bergeron, at the end of each shift, the manager on duty would count the money in the register, fill out a deposit stub for that amount, and place the stub in a locked safe at the restaurant.  The manager would also fill out a deposit ticket for the amount indicated on the stub and deposit both the ticket and the cash at the bank.  Once the cash was deposited, the manager would receive a deposit receipt, which he or she would place in the safe with the corresponding records.  However, according to appellant, this system was very disorganized, and deposit stubs and receipts were frequently missing or scattered in various places.  Appellant also testified that it was not unusual for the person who made the deposit to retain the receipt.

While Bergeron claimed that his deposit system was effective, he conceded that the manager who filled out the deposit stub and ticket was not always the same person who went to the bank, and he admitted that there was no way of knowing who actually made a particular deposit.  Bergeron also acknowledged that there were several different managers at both the Southmore and the Astrodome Denny=s who could access the cash, the safe, and the bank.^[3]   Still, Bergeron  testified that appellant made about 90-95% of the deposits at both locations, and manager Valerie Morris agreed that appellant made most of the deposits at the Southmore Denny=s while he worked there.  Southmore manager Erica Kindle also testified that she only made seven or eight deposits, and that Peter Morant, a manager at the Astrodome Denny=s, made only a couple of deposits for the Southmore Denny=s as well.  Appellant testified that he made sixty percent of the deposits for both franchises.

Bergeron confronted appellant about the missing money and fired him on May 20, 2002. Three days later, police searched appellant=s house and car.  Investigator Mike Kelly testified that officers found deposit receipts from Bergeron=s bank throughout appellant=s house and in his car console. Officers also found overdue bills and creditors= notices addressed to appellant and his wife, bankruptcy documents, gambling ticket stubs and related correspondence, and IRS forms used to report gambling winnings.^[4]  Officers also found receipts for cash purchases, including household appliances, automotive services, and mortgage payments.  Appellant testified that he was able to pay such large expenses in cash because he usually cashed, rather than deposited, his paychecks. Appellant also testified that he won $15,000 in the lottery in August 2001.

Fraud examiner James Glass testified that he compared the deposit receipts found at appellant=s house with deposits that had been made into Bergeron=s Denny=s accounts.  Glass also compared the deposit receipts with deposit stubs that showed how much cash the restaurants had collected on given dates.  Glass=s comparison revealed that while the dates on the receipts found in appellant=s house matched dates on which money was deposited into the Denny=s accounts, the deposit amounts did not always correspond with the amount of money the restaurants had earned, as reflected by the deposit stubs. Glass=s investigation also revealed that several of appellant=s cash transactions coincided with dates where money was missing from the Denny=s deposits.  Accordingly, Glass surmised that appellant would collect several days= worth of earnings and deposit them in one transaction, but that he would keep the earnings from one day of the group.  Glass also testified that appellant=s bankruptcy file was still active between April 2001 and April 2002 and commented that bankruptcy often indicates that a defendant needs cash.  Furthermore, Glass testified that withdrawals made from an ATM at a racetrack came from appellant=s account, although he acknowledged that someone else could have used appellant=s ATM card if he or she knew the PIN number.  Glass also admitted that the gambling receipts found in appellant=s house did not necessarily mean that appellant himself had been at the track, and that the IRS forms bearing appellant=s name did not match the gambling receipts.  Finally, Glass testified that he did not examine the financial records of any other Denny=s managers.

Factual Sufficiency

In a factual sufficiency review, the reviewing court must view all the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).  Evidence is factually insufficient if, when considered by itself, the evidence supporting the verdict is too weak to support a finding of guilt beyond a reasonable doubt and thus renders the conviction clearly wrong and manifestly unjust.  Id. at 85; Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). Alternatively, evidence is factually insufficient if the evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard cannot be met, even if evidence supporting guilt outweighs the evidence to the contrary.  Zuniga, 144 S.W.3d at 484.  The reviewing court may not substitute its own judgment for that of the jury and may not intrude upon the jury=s role as the sole judge of the weight and credibility of witness testimony.  Vasquez, 67 S.W.3d at 236.

To obtain a conviction for aggregate theft, the State had to prove that appellant unlawfully, pursuant to one scheme and continuing course of conduct, appropriated by acquiring and otherwise exercising control over property, namely cash money, owned by Alan Bergeron, with the intent to deprive Bergeron of the property, and the total value of the property appropriated was over twenty-thousand dollars and under one-hundred-thousand dollars.  Tex. Pen. Code Ann. '_ 31.03, 31.09 (Vernon 2003).  We find that the evidence is factually sufficient to support appellant=s conviction.

First, the evidence shows that thefts occurred at both Denny=s when appellant was the manager.  Although he was not the only manager with access to the money, appellant himself admitted that he made deposits sixty percent of the time, and other witnesses testified that appellant made deposits even more frequently.  Viewed in a neutral light, this evidence indicates that appellant had ample opportunity to tamper with the deposits.

Secondly, receipts in appellant=s possession showed that appellant often made deposits for several consecutive days in one trip, but that a couple days= worth of Denny=s earnings would be missing from the lot.  Although appellant argues that Bergeron irresponsibly managed the businesses= finances, the fact that Bergeron did not know who made each deposit does not dilute the incriminating effect of the receipts found in appellant=s possession.  More importantly, money stopped disappearing from the Southmore Denny=s once appellant left that location and it began to disappear from the Astrodome Denny=s shortly after appellant was transferred.  When viewed in a neutral light, this evidence suggests that appellant kept money for himself when he made deposits while working for each store.

Third, the State presented evidence that appellant was going through bankruptcy proceedings when some of the thefts occurred and that he could not pay many of his bills. Glass testified that bankruptcy often indicates that a defendant has a motive to steal money.  As the sole judge of witness credibility and the weight to be given to witness testimony, the jury could rationally deduce from the testimony that appellant had a compelling reason and ample opportunity to steal.  

The State also presented evidence that appellant gambled and paid most of his expenses in cash.  Glass acknowledged that the gambling receipts found in appellant=s house possibly could have been left there by someone else, and he conceded that the ATM withdrawal from the track did not necessarily mean that appellant had withdrawn the money himself.  However, it would be reasonable to infer that appellant visited the track and withdrew the money from his own account.  Furthermore, the IRS gambling forms bearing appellant=s name and appellant=s own testimony reveal that appellant did gamble, even if not on the date on the receipts.  Appellant testified that he was able to pay his bills in cash because he usually cashed his paychecks, and because he won $15,000 in the lottery.  However, Glass=s investigation revealed that many of appellant=s cash transactions coincided with times when deposits were missing from Denny=s, which suggests that appellant funded those transactions with stolen money.

Appellant also suggests that another manager, Erica Kindle, who was also experiencing financial hardships when thefts from the Southmore Denny=s occurred, had similar access to the restaurant=s money and made many deposits.  However, Kindle testified that she made only seven or eight deposits, and as previously mentioned, other witnesses testified that appellant made the vast majority of deposits.  Furthermore, Kindle worked only at the Southmore Denny=s, and thefts occurred from both the Southmore and Astrodome locations.

As the sole judge of witness credibility, the jury was free to disbelieve appellant=s explanations. Viewing all of the above evidence in a neutral light, we find that the jury was rationally justified in finding appellant guilty beyond a reasonable doubt and overrule appellant=s first point of error.

Batson Challenge

In his second point of error, appellant, who is African-American, alleges that the prosecutor violated Batson when he struck two African-American jurors, and that the trial court erred by denying appellant=s motion to quash the panel.^[5]  Determining whether a Batson challenge is proper involves a three-step process. First, the opponent of the peremptory challenge must make out a prima facie case of racial discrimination. Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999) (citing Purkett v. Elem, 514 U.S. 765 (1995)).  Next, the burden of production shifts to the proponent of the strike to present a race-neutral explanation.  Id. The reason offered will be deemed race-neutral unless a discriminatory intent is inherent in the prosecutor=s explanation.  Purkett, 514 U.S. at 767.  Finally, if the proponent of the strike offers a race-neutral explanation, the opponent must show that the proponent=s reasons are only a sham or pretext for discrimination. Contreras v. State, 56 S.W.3d 274, 278 (Tex. App.CHouston [14th Dist.] 2001, no pet.); Straughter v. State, 801 S.W.2d 607, 613 (Tex. App.CHouston [1st Dist.] 1990, no pet.).  The ultimate burden of persuasion always remains with the opponent of the strike, and the trial court must decide whether the opponent has proved purposeful racial discrimination.  Ford, 1 S.W.3d at 693; see also Camacho v. State, 864 S.W.2d 524, 529 (Tex. Crim. App. 1993); Tompkins v. State, 774 S.W.2d 195, 201 (Tex. Crim. App. 1987).  The reviewing court views the evidence in the light most favorable to the trial court=s ruling on a Batson challenge and may overturn a finding that the State exercised its strikes in a race-neutral manner only if such finding is clearly erroneous.  Adanandus v. State, 866 S.W.2d 210, 224 (Tex. Crim. App. 1993); Whitsey v. State, 796 S.W.2d 707, 720-23 (Tex. Crim. App. 1989).

Appellant alleges that the prosecutor violated Batson by striking jurors fourteen and twenty-three.  We disagree. During voir dire, juror fourteen informed the prosecutor that he had a Aclose cousin@ in the Carribean who had been arrested and imprisoned for weapons charges just two weeks earlier.  However, the juror stated that despite his cousin=s experience, the juror did not harbor ill feelings about the criminal justice system. At the Batson hearing, the prosecutor said that he had struck juror fourteen on the basis of his cousin=s arrest and imprisonment Afor [what] appeared to be a felony offense.@^[6]

Similarly, juror twenty-three told the prosecutor that his son had been arrested only a couple of weeks earlier for criminal trespass.  A background check by the State also revealed that eight worthless checks cases were pending against the juror=s son. Juror twenty-three admitted that he disliked the behavior of the police officers who had arrested his son; nevertheless, he said that he did not harbor animosity toward the entire police force and felt that he could be fair and impartial.  At the Batson hearing, the prosecutor said that he struck juror twenty-three because of his son=s arrest and the eight pending criminal cases.

We find that the prosecutor=s reasons for striking both jurors were race-neutral. It is permissible to strike a potential juror on the basis that he has been arrested or has friends or relatives who have been arrested or convicted.  Vargas v. State, 838 S.W.2d 552, 555 (Tex. Crim. App. 1992); Lee v. State, 860 S.W.2d 582, 585 (Tex. App.CHouston [14th Dist.]  1993, pet. ref=d); see also Contreras v. State, 56 S.W.3d at 279-80 (peremptory challenge was race-neutral where stricken juror=s brother had been convicted of DWI); Davis v. State, 822 S.W.2d 207, 211 (Tex. App.CDallas 1991, pet. ref=d) (striking African-American venire person because her father had been convicted or charged with tax evasion and served no prison time was a race-neutral reason).

We find that the trial court=s decision to overrule appellant=s motion to quash the panel was not clearly erroneous.  Viewing the evidence in the light most favorable to the trial court=s ruling, we find that defense counsel did not prove that the prosecutor=s offered reasons were pretexts for intentional discrimination. At the Batson hearing, after the prosecutor presented his race-neutral reasons, defense counsel responded:

Judge, the only characteristics that these folks have in common is that they are black.  I want the record to show and reflect that those four of the ten strikes in which [sic] exercised by the State were exercised against the black veniremen and this was even done in response or after sentencing questions from him that they could, in fact, remain and were able to remain fair.^[7]

Simply reiterating that the stricken jurors were African-American and reminding the court that those jurors had claimed they could remain impartial does not prove that the State=s reasons were merely a pretext for racial discrimination. Accordingly, we find that the trial court=s ruling was not clearly erroneous, and overrule appellant=s second point of error.

Improper Jury Argument

In his third point of error, appellant argues that the trial court erred in overruling his objection to references in the State=s closing argument that appellant was in the midst of bankruptcy during the period that the thefts occurred.  According to appellant, referring to appellant=s bankruptcy was improper because the record contains no evidence that appellant was in bankruptcy during the time of the thefts.  We disagree.

Proper jury argument consists of: (1) reasonable summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to the argument of opposing counsel, and (4) plea for law enforcement.  Jones v. State, 38 S.W.3d 793, 796 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d) (citing Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000)). Even when an argument exceeds the permissible bounds of these areas, the error will not be reversible unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the defendant into the trial proceeding.  Wesbrook, 29 S.W.3d at 115.  The prosecutor=s efforts must have been a willful and calculated effort to deprive the defendant of a fair and impartial trial.  Id.

We find that the prosecutor=s comments about appellant=s bankruptcy did not exceed the proper bounds of jury argument.  Appellant claims that the bankruptcy proceeding began and ended before the first theft occurred.  However, State=s exhibits twenty-two and twenty-seven, which were admitted without objection at trial, show that appellant=s bankruptcy was still ongoing during the period of the thefts.  The first theft occurred on April, 18, 2001 and the last occurred on April 20, 2002.  Appellant filed for bankruptcy on December 1, 1997.  For the next several years, appellant received notices from creditors and filed numerous motions to modify until the bankruptcy proceeding was dismissed on September 13, 2001.  The proceeding was reinstated upon appellant=s motion on October 29, 2001, and the final decree of discharge issued on December 26, 2001.  Clearly, these exhibits demonstrate that from April 18, 2001 until December 26, 2001, appellant=s bankruptcy coincided with the period of the thefts. State=s exhibits twenty-two and twenty-seven were admitted at trial without objection, and Kelly and Glass both testified about the documents= significance; therefore, the prosecutor=s comments constituted reasonable summation of the evidence.  Accordingly, we overrule appellant=s final point of error and affirm appellant=s conviction.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Opinion filed October 27, 2005.

Panel consists of Chief Justice Hedges and Justices Yates and Anderson.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  A jury assessed punishment of not less than five years in the Correction Institutional Division of the Texas Department of Criminal Justice.

^[2]  Although the record is unclear, there is evidence that twenty-nine deposits were missing.

^[3]  One of the Southmore managers, Erica Kindle, admitted that she had been experiencing financial problems when some of the thefts occurred, namely that she could not afford her rent or furniture payments.  When confronted by Bergeron, appellant suggested that perhaps Kindle had stolen the money to alleviate her financial hardship.

^[4]  The bankruptcy documents evidenced that appellant had filed two separate actions in bankruptcy.  The first was filed December 1997 and discharged December 26, 2001.  The second was filed August 26, 2002.

^[5]  See Batson v. Kentucky, 476 U.S. 79 (1986) (holding that the Equal Protection Clause prohibits the striking of venire persons solely on the basis of their race).

^[6]  The prosecutor stated that juror fourteen=s brother, not cousin, had been arrested.

^[7]  The prosecution struck four African-American venire persons.  However, appellant  addresses only  two of the stricken jurors on appeal.