Calvin Gary Walker v. the State of Texas ( 2022 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-20-00011-CR
__________________
CALVIN GARY WALKER, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 14-19966
__________________________________________________________________
OPINION
Appellant Calvin Gary Walker challenges his conviction for securing
execution of a document by deception. See Act of May 10, 1997, 75th Leg., R.S.,
ch. 189, § 2, Tex. Gen. Laws 1045, 1046 (amended 2011) (current version at Tex.
Penal Code Ann. § 32.46). 1 In nine issues on appeal, Walker challenges the
1
We note that in 2014, Calvin Walker filed applications for pretrial writs of
habeas corpus seeking to dismiss his cases on double jeopardy and due process
grounds. According to the pretrial writ relevant to the appeal here, Walker alleged
the indictment concerned the same conduct covered by his federal plea agreement,
1
constitutionality of section 32.46 of the Texas Penal Code, denial of his motion to
quash the indictment, legal sufficiency of the evidence, admission of evidence, jury
charge instruction, and the restitution order. We affirm the trial court’s judgment.
BACKGROUND
In 2014, by indictment, the State charged Walker with securing execution of
a document by deception, a first-degree felony. The State alleged that Walker
with intent to harm or defraud Beaumont Independent School District,
by deception, to wit: by submitting fraudulent invoices, cause[d] Jane
Kingsley to sign or execute a document affecting the pecuniary interest
of Beaumont Independent School District, the value of said pecuniary
interest being $200,000 or more . . . .
and Walker complained the trial court denied his application without conducting an
evidentiary hearing. See Ex parte Walker, 489 S.W.3d 1, 3 (Tex. App.—Beaumont
2016, pet. ref’d). After concluding the State had not forfeited the dual sovereignty
doctrine, the trial court found that Walker’s double jeopardy claim lacked merit and
denied Walker’s applications. See id. at 6. The trial court also determined that based
on Walker’s petitions and attached documents, it could render a proper ruling
without further development of Walker’s claim. See id. at 8. Walker appealed the
ruling denying his pretrial applications. This Court affirmed the trial court’s rulings
in those appeals, holding that Walker was not entitled to relief. See id. at 14. In 2017,
Walker filed more applications seeking habeas relief. He asked the trial court to
dismiss the indictments on double jeopardy grounds, and he challenged the
constitutionality of the separate sovereign exception. The trial court also denied
those applications, finding Walker’s claims without merit. Walker appealed, and this
Court affirmed the trial court’s rulings in the opinion the Court issued in 2018. See
Ex parte Walker, Nos. 09-17-00472-CR, 09-17-00473-CR, 09-17-00474-CR, 09-17-
00475-CR, 09-17-00476-CR, 09-17-00477-CR, 2018 WL 1864618, at *1, 3-4 (Tex.
App.—Beaumont Apr. 18, 2018, pet. ref’d) (mem. op. not designated for
publication).
2
The State attached a check from Beaumont Independent School District (“BISD”)
for $1,285,064 made payable to Walker’s Electric Company (“Walker’s Electric”)
to the indictment. The attached check was executed by Jane Kingsley, who was the
Chief Financial Officer for BISD in May 2009.
Walker filed a Motion to Quash Indictments, alleging that the indictment
failed to give sufficient notice of the conduct relevant to his defense, thereby
violating his constitutional rights and the Texas Code of Criminal Procedure.
According to Walker’s motion, the State failed to attach the invoices the State
alleged Walker fraudulently submitted. In his First Amended Motion to Quash
Indictments, Walker also claimed section 32.46 of the Texas Penal Code is
unconstitutionally vague as applied to him. According to Walker, the State provided
no notice of what “value” means in the context of a purported victim’s pecuniary
interest because section 32.46 fails to define “pecuniary interest.” Walker argued
that the indictment is insufficient to give notice as to what about the allegedly
fraudulent invoices the State contends is deceptive. Walker also claimed that section
32.46 of the Texas Penal Code is unconstitutionally vague “[o]n its face.”
In August 2019, the trial court held a pre-trial hearing on Walker’s request to
quash the indictment, during which the State agreed to provide the fraudulent
invoices that apply to the indictment. Based on the State’s agreement to tender the
invoices to Walker, the trial court ruled that the trial court’s failure to grant the
3
motion to quash could not have any bearing on Walker’s ability to prepare his
defense. The trial court asked that the State either amend the indictment or provide
some particularity in writing about what is wrong with the invoices that makes them
deceptive. Although Walker’s counsel argued that providing the invoices does not
cure the fault in the indictment, the trial court indicated that the State’s effort would
provide adequate notice.
As to Walker’s claim that section 32.46 is unconstitutional, Walker’s counsel
argued that by failing to provide a statutory definition for the term “pecuniary
interest,” and providing no definition of the “value” of the damages the defendant is
alleged to have caused, the statute is unconstitutional. Walker’s attorney noted that
the term “value” is defined in section 32.02 of the Texas Penal Code. Walker’s
counsel explained that section 32.46 concerns property, service, or pecuniary
interest, and the indictment only alleges pecuniary interest. Walker’s counsel argued
that the statutory definition of “value” applies to all sections of Chapter 32, and that
definition does not provide a formula by which to calculate the value of “pecuniary
interest” under section 32.46. According to Walker’s counsel, by failing to provide
a standard or formula for calculating the value of the “pecuniary interest” allegedly
lost, section 32.46 is unconstitutionally vague since it fails to show the defendant
how to determine the alleged value of the fraud. The State argued that the statute is
constitutional, the Court of Criminal Appeals has found it adequate, and that the
4
terms that are not statutorily defined are defined by the commonly understood
meaning for the term. The trial court agreed and denied the motion to quash, finding
the statute is not unconstitutionally vague since the term “pecuniary interest” has a
commonly understood meaning to include money.
In September 2019, the parties tried the case to a jury. During the trial, the
State called Jane Kingsley, who was acting in her capacity as BISD’s Chief Financial
Officer when she signed the check BISD issued to Walker’s Electric for $1,285,064.
Kingsley explained that she was responsible for accounts payable resulting from
purchases made by BISD, and her responsibility included reviewing invoices from
Walker’s Electric and signing checks to contractors employed by BISD. Kingsley
testified that the procedures she followed when working for BISD required her or
one other person to manually sign checks exceeding $1,000,000. Kingsley also
testified that she required documentation to support all the checks she signed on
behalf of BISD. According to Kingsley, on May 29, 2009, she signed check number
557268 for $1,285,064, a check BISD made payable to Walker’s Electric, a company
owned by Walker. Kingsley explained that check number 557268 covered two
accounts relevant to BISD’s business with Walker’s Electric, and the accounts
included South Park Middle School (“South Park”) and Regina Howell Elementary
(“Regina Howell”). Kingsley explained Walker’s Electric provided her with
documents relevant to check number 557268, and those documents included
5
delivery receipts from Summit Electric Supply (“Summit”) to Walker’s Electric.
Kingsley also testified that Walker submitted two requests to pay an invoice from
Walker’s Electric to BISD against the blanket purchase order that BISD had issued
for the jobs at South Park and Regina Howell, and those requests corresponded with
invoice numbers 2210 and 2211, which are referenced on check number 557268.
Kingsley explained that invoice number 2211 in the amount of $642,532 is
dated April 24, 2009 and references work Walker’s Electric represented it did at
South Park. Kingsley also explained that invoice number 2211 includes a ten percent
markup of $58,412, because BISD allowed Walker’s Electric to charge a ten percent
markup above the actual cost of the materials that he used on that job. Kingsley
testified that invoice number 2210, which was for $642,532, contains the same ten
percent markup, and references work that Walker’s Electric represented it performed
at Regina Howell. According to Kingsley, invoice numbers 2210 and 2211 total
$1,285,064, and because Walker was asking for reimbursement for materials he had
paid for, she requested that Walker provide additional documentation of the costs
for the materials included in the two invoices. Kingsley testified that she signed
check number 557268 based on the documentation Walker provided to support the
delivery of those materials and their cost.
As to the actual cost of materials at South Park, Kingsley explained that
Walker submitted a delivery receipt from Summit to Walker’s Electric and a copy
6
of check number 3498 from a Capital One account that indicated Walker’s Electric
paid Summit for the delivery. Kingsley explained the delivery receipt purportedly
signed by T. Trahan shows on its face that Summit received check number 3498
drawn on Walker Electric’s Capital One account. Kingsley explained that the
delivery receipt tied to check number 3498 lists items totaling $584,120, references
account number 1012072 and sales order number 1129758, shows a delivery date of
May 19, 2009, includes Toby Trahan’s contact information, and is signed by Walker
and stamped as paid. According to Kingsley, the stamped delivery receipt appeared
to her to have been stamped as paid by Summit.
Concerning Regina Howell, Kingsley testified that Walker submitted a second
delivery receipt showing that Walker’s Electric purchased $584,120 in materials
from Summit. Walker’s Electric provided BISD with a copy of check number 3497
for $584,120 from Walker’s Electric’s Capital One account, which says it is payable
to Summit. The second delivery receipt is signed by T. Trahan, references check
number 3497, and contains a stamp representing Walker paid Summit for the
materials that are shown on the receipt. According to Kingsley, she would not have
signed the $1,285,064 check for BISD which was made payable to Walker’s Electric
had she known the delivery receipts and the corresponding invoices Walker provided
to BISD were false.
7
On cross-examination, Kingsley testified she was generally aware of BISD’s
projects to build temporary campuses for South Park and Regina Howell using
portable buildings and to rebuild both schools. Kingsley testified that Walker gave
BISD a quote bidding for electrical work for Regina Howell to supply power to forty
trailers, including the labor and materials for that work. According to Kingsley,
based on Walker’s quote, BISD’s purchasing order agent, Naomi Lawrence Lee,
issued a blanket purchase order to Walker’s Electric so Walker could order materials
for those jobs. Kingsley testified that several people would have reviewed the
documentation that Walker’s Electric attached to its quote before approving the
blanket purchase order. Kingsley acknowledged that BISD and Walker’s Electric
had an agreement with Walker to perform the work, but Kingsley explained the
amounts paid under the purchase order might not equal Walker’s quote if there were
change orders for the work Walker’s Electric performed at those schools. Kingsley
also testified that Walker’s Electric’s quote does not indicate that Walker’s Electric
intended to sell materials it already owned to use for Regina Howell.
Kingsley further testified that when Walker submitted invoice 2210 for
Regina Howell, which included a ten percent markup on materials, she asked Walker
to provide additional information supporting his invoice. Kingsley explained that
when Walker submitted a request to pay invoice 2210, his invoice would have been
attached for payment against the purchase order. Kingsley testified that Walker
8
submitted a similar quote to supply the electrical work needed to power
approximately forty temporary trailers at South Park, which included labor,
materials, and a ten percent markup, along with invoice 2211 and a request to pay
invoice 2211. Kingsley explained that nothing on the face of the Summit delivery
receipts or the two checks from Walker’s Electric to Summit show that she or anyone
in her office reviewed the supporting documents Walker provided to BISD. Kingsley
maintained throughout her testimony that without the supporting documents
Walker’s Electric provided BISD, she would have never authorized payment on
invoices 2210 and 2211.
On redirect, Kingsley reiterated why she asked for more documentation to
support invoices 2210 and 2211, and Kingsley agreed that if the Summit delivery
receipt to Walker’s Electric is false, invoice 2211 is also false, and she would not
have issued Walker’s Electric a check if the supporting documents were false.
According to Kingsley, Walker never told BISD he used his own materials on the
jobs at South Park and Regina Howell, and if that had been the case, he could not
properly document the cost of his materials by providing the Summit delivery
receipts. Kingsley explained the documents that Walker provided to BISD
represented that he bought the materials for those jobs from Summit, at a total cost
consistent with the checks Walker’s Electric made payable to Summit.
9
Chris Rybacki, a Process Excellence Manager with Summit, testified that he
reviewed Summit documents pursuant to a business record request. Rybacki testified
that Summit is a wholesale distribution house that sells products and materials to
electricians. Rybacki also testified that he had dealt with Walker on many occasions.
Rybacki explained that Summit’s current computer system, which maintains all
records regarding quotes, invoices, and deliveries, was in place in 2009. According
to Rybacki, Summit gave Walker Quotation/Purchase Agreement Number
2000334840 on April 24, 2009. Rybacki explained that Summit’s quotes include
Summit’s cost and sale price, which is the sale price after the markup. Regarding the
items in Quotation/Purchase Agreement Number 2000334840, which is admitted
into evidence as State’s Exhibit 4-A, Rybacki testified that Summit does not carry
some items listed in the purchase agreement, and other items in the agreement are
priced abnormally or “ridiculously high.”
State’s Exhibit 4-B, which is dated May 19, 2009, is an original invoice from
Summit to Walker’s Electric. The invoice references sales order number 1129753
and Regina Howell, and according to Rybacki, it shows that Walker picked up a
screwdriver priced at $15.02 and was invoiced for the screwdriver that same date.
Rybacki testified that State’s Exhibit 4-C is a delivery receipt for the screwdriver,
and the delivery receipt contains the same sales order number and account number
as State’s Exhibit 4-B. Rybacki authenticated both exhibits as documents that came
10
from Summit. Rybacki explained that State’s Exhibits 4-D and 4-E, which reference
South Park, are the original invoice and delivery receipt for a pair of protective
eyewear. Rybacki also authenticated Exhibits 4-D and 4-E as documents that came
from Summit, and as documents that have the same account number as Exhibits 4-
B and 4-C.
Regarding State’s Exhibit 1-A, the delivery receipt from Summit to Walker’s
Electric totaling $584,120 and referencing South Park, Rybacki explained that
Exhibit 1-A’s sales order number is 1129758, which is the same sales order number
as Exhibit 4-D. Rybacki testified that his computer search of sales order number
1129758 showed that Exhibit 4-D is the genuine document. According to Rybacki,
State’s Exhibit 1-A could not have come from Summit, because the document could
not possibly have been generated by Summit’s computer system. Rybacki also
testified that State’s Exhibit 1-C, the delivery receipt from Summit to Walker’s
Electric totaling $584,120 and referencing Regina Howell, could not have come
from Summit. According to Rybacki, Summit never sold Walker the supplies that
are in State’s Exhibits 1-A and 1-C, and Summit did not receive check numbers 3497
and 3498 from Walker’s Electric. Finally, Rybacki testified that State’s Exhibits 4-
F and 4-G are genuine Summit documents, which show the amount Summit billed
Walker’s Electric for a series of switchboards that Walker’s Electric ultimately used
in the work it performed at Regina Howell and South Park. According to Rybacki,
11
the exhibits show Summit sold Walker’s Electric switchboards for a price much
lower than the amount Walker’s Electric charged BISD and which BISD paid.
Ndubisi Nwachuku, a supervisor special agent with the FBI, testified that in
December 2010, he and other agents searched Walker’s residence and later
interviewed Walker. Nwachuku testified that Walker agreed to answer questions
about his contract with BISD, and that Walker stated in his interview that BISD
reimbursed Walker’s Electric for the materials he installed at the schools based on
an agreement that allowed him to charge cost plus ten percent. Nwachuku explained
he questioned Walker about documents that Walker’s Electric submitted to BISD,
including invoices 2210 and 2211, the Summit delivery receipts discussed above,
and the checks drawn on Walker’s Electric’s Capital One account and made payable
to Summit for the materials previously discussed. Nwachuku testified that during the
interview, Walker acknowledged the documents were his and claimed to have
presented the checks to Summit after Summit delivered the items reflected in the
delivery receipts. Walker also told Nwachuku that one of the checks he gave Summit
for the materials was returned to him while the other was paid. Nwachuku explained
that agents found the two checks in Walker’s attic.
Nwachuku testified that when he confronted Walker about Trahan being one
of Walker’s employees, Walker stated he did not hire Trahan to help him defraud
BISD. Nwachuku further testified when he asked Walker if the checks to Summit
12
were ever paid out of his account, Walker stated that Summit never accepted the
checks, because Summit was going to bill him after the items were delivered.
Nwachuku explained that when he asked Walker why Summit had not billed him,
Walker said that Summit was incompetent, but that he was not responsible for
Summit’s business practices. Nwachuku also explained that Walker’s Electric did
not have sufficient funds in its bank account to pay the two checks it issued to
Summit, but Walker claimed he was going to put sufficient money in the account to
cover the checks and that his accountant was responsible for handling that.
Nwachuku testified that when he told Walker that Summit had no record of
delivering the items in the delivery receipts to Walker’s Electric, Walker claimed he
received the supplies, and he was not responsible for the manner Summit chose to
conduct its business.
Walker also admitted in the interview with Nwachuku that Walker’s Electric
sent BISD (1) invoice numbers 2210 and 2211, (2) the delivery receipts from
Summit relevant to those invoices, and (3) the checks drawn on Walker’s Electric’s
Capital One account and made payable to Summit. Nwachuku explained that during
the search, Walker helped him recover several items from inside Walker’s home,
including a paid stamp that, according to Nwachuku, appears similar to the stamp
used to stamp “paid” on the Summit delivery receipt for the Regina Howell job.
Other items recovered in the search of Walker’s home included the original checks
13
drawn on Walker’s Electric Capital One account and made payable to Summit, a
document that shows the actual price Walker’s Electric paid for the switchboards
that were later installed by Walker’s Electric at the two schools, the original of
invoice number 2210 and other altered versions of that invoice, the original Summit
delivery receipts for a pair of protective eyewear and a screwdriver along with other
altered versions of those receipts that included the signature of Trahan. On cross-
examination, Nwachuku testified that in Walker’s interview, he told agents that he
was not required to send copies of the checks to BISD but had done so accidentally.
Finally, Nwachuku testified that agents found check numbers 3497 and 3498, and
the word “void” was marked on the checks.
Ronald Reynolds, a licensed master electrician, testified as an expert for the
State. According to Reynolds, he has been in the business of providing estimates for
electrical work for about thirty-five years. Reynolds explained that based on a
request by the prosecutors, he inspected the Regina Howell and South Park
temporary campuses and provided the State with an electrical bid for the electrical
systems that Walker’s Electric installed at the two schools in 2009. Reynolds
explained that in addition to his inspection, he used the plot plan and the invoices
from the suppliers that provided the materials for the work performed at those
schools to create a bid. Reynolds testified that after reviewing State’s Exhibit 4-A
and the prices charged for the materials, he concluded that Walker’s Electric
14
represented to BISD that it paid much more for the materials than it actually paid.
Reynolds also explained that some of the materials listed in Walker’s Electric
documentation are false, because during his inspection, he did not observe certain
materials at either campus.
Reynolds testified that he generated a report showing the actual cost for the
materials that Walker’s Electric used at the two schools is $58,552.09, a figure that
includes sixteen percent for overhead and a ten percent profit. Reynolds testified that
in his opinion, the appropriate charge to BISD for the materials installed for South
Park should have been $74,712.47. Regarding Regina Howell, Reynolds explained
the actual cost of the materials Walker’s Electric used at that school is $53,790.99.
After adding sixteen percent for overhead and another ten percent for profit, the cost
for the materials that Walker’s Electric should have invoiced would have been
$68,637.31. According to Reynolds, the combined total actual cost for the materials
used for the South Park and Regina Howell jobs was approximately $111,000.
Walker called Debra Cormier in presenting his defense. Cormier started
working for BISD as a maintenance electrician in 2008. Cormier testified that when
Hurricane Ike hit Beaumont, a lot of electrical work was required. Cormier explained
that Walker’s Electric was BISD’s outside contractor on jobs too large for
electricians on BISD’s staff, and Cormier worked with Walker on both the South
Park and Regina Howell jobs, which were large jobs that included wiring forty
15
portable buildings on each campus. Cormier testified that the leftover cable from the
job was delivered to BISD’s maintenance shop and the leftover poles were stored in
BISD’s lay down yard and parking lots. According to Cormier, some of the material
that was not used at those schools was stored in the warehouse and later used on
other BISD projects.
Walker also called Lee in presenting his defense. According to Lee, she was
employed as BISD’s director of purchasing from 2008 to 2014. Lee explained that
she was responsible for procuring goods and services, work that included issuing
contracts and purchase orders. Lee testified that in 2007, BISD voters passed a $386
million bond to improve facilities in BISD, work that required new construction and
renovation of many of the school’s existing buildings. Lee testified that in 2008 and
2009, Walker’s Electric had the maintenance contract for all BISD electrical work.
According to Lee, the projects at South Park and Regina Howell involved new
construction, so the electrical work for those jobs did not fall under Walker’s
maintenance contract. According to Lee, the construction work at those campuses
were paid from the school’s bond account. Lee testified that before she signed the
blanket purchase order, Terry Ingram and other people with authority reviewed and
approved Walker’s quote. Lee further testified that she understood that once she
signed the purchase order with a contractor, BISD was bound by the terms of its
agreement.
16
Lee testified that Walker’s quote for the work Walker’s Electric did at the
South Park and Regina Howell schools was a standalone contract because it was
paid for by using funds from the bond account, and Lee explained one check was
issued by BISD to pay for both projects. According to Lee, because the work
involved a standalone contract, Walker could charge whatever BISD was willing to
pay depending on the scope of the work required and Walker’s estimate about what
the project would cost. Lee agreed that generally, a BISD document that is signed
and stamped indicates the document has been reviewed and approved by BISD. Lee
testified that nothing in the Summit delivery receipts show that Kingsley either
reviewed or approved the documents Walker submitted for $584,120 of supplies for
Regina Howell and South Park. Lee also explained that if Kingsley testified she did
review the documents, Lee would not disbelieve her.
On cross-examination, Lee agreed that she knew Walker personally and that
Walker had used her as a reference on his bid he submitted for the BISD maintenance
contract. Lee also agreed that BISD has discretion to ask that contractors provide
invoices showing the cost of the materials used to perform a job, but she then
changed her testimony and claimed the discretion to ask for invoices applies only to
Walker’s Electric’s maintenance contract. Lee testified there was no legitimate
reason for a contractor to submit a fraudulent document to BISD. Lee explained
BISD also conducted an internal investigation into allegations that Walker’s Electric
17
was not billing BISD properly, a review that included validating the documentation
he sent to BISD regarding Regina Howell and South Park. Lee agreed that she never
contacted Summit to confirm that the materials Walker’s Electric purchased from
Summit tracked the delivery tickets he provided BISD. Lee further testified that in
2011, she was not aware of any mix-up concerning BISD receiving documents that
were intended for Walker’s Electric’s accountant.
Stacy Walker, Walker’s ex-wife, also was called by Walker to testify in his
defense. Stacy testified that in 2009 she helped Walker with Walker’s Electric’s
paperwork, including sending invoices to his accountant. Stacy testified that after
Walker got the South Park and Regina Howell jobs, she accidentally sent documents
to BISD that were meant for the accountant. According to Stacy, Walker retrieved
the documents she mistakenly sent BISD, documents that included the invoices and
checks on the work Walker’s Electric performed for South Park and Regina Howell.
Stacy explained that voided check numbers 3497 and 3498 from Walker’s Electric
to Summit “would be the amount that [Walker] would have made for the purchase
of the material for the accountant, but not personally.” According to Stacy, Walker’s
Electric had a warehouse with electrical supplies, and check numbers 3497 and 3498
were used to inform their accountant about the cost of the materials for the job even
though Walker had purchased the materials elsewhere and had it on hand in a
18
warehouse. Stacy explained she did not know how much of the materials used on
those two jobs came from Walker’s Electric’s warehouse.
On cross-examination, Stacy testified she first saw the documents she sent to
BISD by mistake after Walker retrieved the documents from BISD. Stacy testified
the Summit delivery receipts for the South Park and Regina Howell jobs were
falsified and that voided check numbers 3497 and 3498 were never negotiated. Since
Stacy claimed she had mistakenly sent documents including the invoices at issue to
BISD, the trial court allowed the State to offer a Factual Basis and Stipulation, a
stipulation that contains Walker’s signature. The trial court then allowed the Factual
Basis and Stipulation to be published to the jury. It states:
CALVIN GARY WALKER . . . agrees to the truth of all matters set
forth in this Factual Basis and Stipulation, . . . . Records from the BISD
reflect that on or about August 29, 2009, the defendant submitted an
invoice for labor, materials, and rental equipment in the amount of
$1,592,839.10 for the electrical wiring of two temporary campuses. On
or about September 9, 2009, the BISD issued a check in the amount of
$1,592.839.10 for the payment of such materials as well [as] for labor
and equipment rental charges. . . . Included in the wholesale invoices
was an invoice in the amount of $382,975.32 which had been altered to
reflect it was an invoice when in fact the document was a quote and not
an actual purchase. The defendant’s check payable to that wholesaler
in the amount of $382,975.32 was never presented to the wholesaler or
negotiated. Records of the BISD also contained similar altered
documents purportedly from the same electrical supplier matching
invoices submitted by the defendant for materials in other projects. . . .
I fully understand the contents of this Factual Basis and Stipulation and
agree without reservation that it accurately describes the events and my
acts.
19
Finally, Walker called Dr. Carol Thomas to testify in his defense. Thomas
testified that from 1996 to 2012, he was the superintendent of BISD. During his
tenure, the voters passed a bond for approximately $300 million to build and improve
BISD’s facilities. Thomas explained that when the bond was being considered, a
hurricane damaged some of BISD’s campuses and campuses were combined in
portable buildings. Walker’s Electric held the electrical maintenance contract, and
for that reason, BISD chose Walker’s Electric to perform the work necessary to
connect electricity to the portable buildings. Thomas testified the South Park and
Regina Howell projects involved moving the schools to eighty portable buildings
until new campuses were completed. BISD accepted Walker’s electrical bid for
those projects.
According to Thomas, three or four BISD staff members, an architect, and a
public adjuster would likely have reviewed Walker’s bid before it was approved.
Thomas further testified the contract for the projects for the two schools was a stand-
alone contract, meaning a contract not covered by Walker’s maintenance contract.
Thomas testified that people reviewed Walker’s work, and Walker did an excellent
job in getting the portable buildings ready for the start of school.
Thomas testified that in his opinion, Walker performed the work as promised,
and BISD accepted the price Walker charged for the work without ever claiming it
did not get its money’s worth. Thomas also explained BISD’s school board declared
20
an emergency due to the hurricane damage, and for that reason, he assumed the
South Park and Regina Howell projects were done on an emergency basis. Thomas
testified that under BISD’s policies, a purchase order becomes a contract after BISD
accepts a bid. Thomas testified that after Walker’s Electric followed BISD’s
procedures, Kingsley had the authority she needed to sign the check paying Walker’s
Electric for the work.
On cross-examination, Thomas testified that BISD hired Parsons Corporation
as BISD’s bond manager to help administer the bond money. Thomas explained that
Parsons estimated that it would cost $150,000 per school to prepare a temporary
campus for South Park and Regina Howell. Thomas testified he trusted Parsons’s
competence in managing the bond and he relied on Parson’s projections about the
costs. Thomas agreed the South Park and Regina Howell projects took around two
and a half months to complete and ultimately cost BISD approximately $2.8 million,
an amount that Thomas believed was reasonable based on input from his staff and
the quotes BISD received. Thomas testified that if the documents his staff relied on
were fraudulent, his opinion would change, but that the bond manager and his staff
were experts and had assured him the amount BISD paid for the work done at the
two schools was reasonable. According to Thomas, in his opinion, Walker treated
BISD honestly, but he also agreed that if Walker was in fact dishonest with BISD,
his dishonesty would taint the process. Thomas testified that while he could not
21
recall whether he told FBI agents that Walker was under a cost-plus contract, he
assumed that was the case. Thomas also testified that in 2009, he did have concerns
about the costs for the South Park and Regina Howell projects. Thomas further
testified if BISD had requested additional documentation for an invoice before
issuing a check, the contractor should have provided the documentation. On redirect,
Thomas explained that the documentation requirement was one of the terms in the
maintenance contract.
After hearing the arguments from counsel, the jury found Walker guilty of
securing execution of a document by deception, assessed Walker’s punishment at
ten years of imprisonment, recommended that his punishment be probated, and
assessed a $10,000 fine. The jury was not asked to consider whether Walker should
be required to repay BISD for the amount it paid Walker due to the fraudulent
conduct the jury concluded the State proved in the trial. On October 1, 2019, the trial
court conducted a punishment hearing and rendered a judgment finding Walker
guilty, but suspended Walker’s punishment of ten years of confinement, choosing
instead to place Walker on probation for ten years. The trial court also assessed a
$10,000 fine. The trial court told Walker that after receiving Walker’s post-sentence
report, he would conduct a hearing and decide what other terms to impose on Walker
as a condition of granting his request for probation.
22
On October 17, 2019, BISD’s Superintendent notified the State that BISD
wanted restitution to the fullest extent permitted by law. Walker filed a motion for a
new trial, arguing the State had used false and misleading evidence that violated his
rights to Due Process. According to Walker, the State repeatedly presented evidence
that Walker’s contract for the Regina Howell and South Park temporary buildings
included a cost-plus term when Walker’s bid did not include such a term. On
November 5, 2019, Walker filed his Sentencing Memoranda, in which he argued,
among other things, that the trial court should not order restitution because the
indictment did not allege a loss, the evidence did not establish that BISD suffered a
loss, and the jury made no finding as to a restitution amount.
On November 6, 2019, the trial court held a hearing to decide the terms of
Walker’s probation. During the hearing, Walker’s counsel argued the trial court
could not order restitution because the court had not orally pronounced that as part
of his sentence and because the evidence did not prove a loss. The trial court
responded by noting article 42.037 of the Texas Code of Criminal Procedure
authorizes trial courts to order restitution as a term of probation, and that the court
made it clear that it intended to decide the terms and conditions of Walker’s
probation after it received the post-sentence report. The trial court noted that no one
objected to that plan when the court pronounced Walker’s sentence. When the
hearing ended, the trial court decided to reset the matter and conduct an evidentiary
23
hearing to determine what amount to assess as restitution and to consider Walker’s
motion for new trial. The Community Supervision Order the trial court signed
following that hearing reflects that Walker will pay restitution as determined by the
trial court.
At the January 8, 2020 hearing, the trial court conducted a restitution hearing
and heard Walker’s motion for new trial. After hearing the evidence, the trial court
found BISD’s loss due to Walker’s fraud was $1,172,656.01. The trial court entered
an Order of Restitution and a Judgment Nunc Pro Tunc which again found Walker
guilty, but suspended Walker’s punishment of ten years of confinement, placed
Walker on probation for ten years, and ordered that Walker pay BISD restitution of
$1,172,656.01. The trial court also denied Walker’s motion for new trial.
ANALYSIS
In issue one, Walker argues section 32.46 of the Texas Penal Code is
unconstitutionally vague and violates the Due Process Clause in the Fifth and
Fourteenth Amendments. See Acts 1997, 75th Leg., R.S., ch.189, § 2, Tex. Gen.
Laws 1045, 1046. (amended 2011) (current version at Tex. Penal Code Ann. §
32.46).
“Whether a statute is facially constitutional is a question of law that we review
de novo.” Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). We presume that
a statute is valid and that the Texas Legislature did not act unreasonably or
24
arbitrarily. Id. at 14-15. “The burden normally rests upon the person challenging the
statute to establish its unconstitutionality.” Id. at 15. Statutes are not necessarily
unconstitutionally vague merely because the words or terms employed in the statute
are not specifically defined. See Engelking v. State, 750 S.W.2d 213, 215 (Tex. Crim.
App. 1988). When a statute does not define the words used therein, we give the
words their plain meaning. See Parker v. State, 985 S.W.2d 460, 464 (Tex. Crim.
App. 1999); see also Tex. Gov’t Code Ann. § 311.011(a) (“Words and phrases shall
be read in context and construed according to the rules of grammar and common
usage.”). A statute will be invalidated if it fails to give a person of ordinary
intelligence a reasonable opportunity to know what conduct is prohibited. See State
v. Holcombe, 187 S.W.3d 496, 499 (Tex. Crim. App. 2006). Because Walker made
a facial challenge to the statute, he must prove the statute is unconstitutional in every
application and prove the statute could never be constitutionally applied to any
defendant under any set of facts or circumstances. See State v. Rousseau, 396 S.W.3d
550, 557 (Tex. Crim. App. 2013); Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim.
App. 1992). On the other hand, if a reasonable construction renders the statute
constitutional, we must uphold the statute. Tarlton v. State, 93 S.W.3d 168, 175
(Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).
Section 32.46 provides, in pertinent part, that a person commits the offense of
securing execution of a document by deception if, “with intent to defraud or harm
25
any person, he, by deception . . . causes another to sign or execute any document
affecting property or service or the pecuniary interest of any person . . . .” See Act
of May 10, 1997, 75th Leg., R.S., ch. 189, § 2, Tex. Gen. Laws 1045, 1046. The
offense is a felony of the first degree if the value of the property, service, or
pecuniary interest is $200,000 or more. Id.
The indictment alleges that Walker, with intent to harm or defraud BISD by
deception, submitted fraudulent invoices, which in turn caused Kingsley to sign or
execute a document that affected the pecuniary interests of BISD. The indictment
further alleges that the value of that pecuniary interest is $200,000 or more. A copy
of the check signed by Kingsley was attached to Walker’s indictment.
Walker asserts that the statute is unconstitutionally vague because it does not
define “pecuniary interest.” He concludes that absent a statutory definition, it was
impossible for the jury to accurately determine whether the value of the pecuniary
interest was $200,000 or more. As the term “pecuniary interest” is not defined in
section 32.46, we use the plain and ordinary meaning for the term. See Parker, 985
S.W.2d at 464; Goldstein v. State, 803 S.W.2d 777, 791 (Tex. App.—Dallas 1991,
pet. ref’d) (concluding that the pecuniary interest requirement under section 32.46 is
met if the complainant had a financial stake in the matter); see also Tex. Gov’t Code
Ann. § 311.011(a). Black’s Law Dictionary defines “pecuniary interest” as meaning
a direct interest related to money in an action or case. Pecuniary Interest, BLACK’S
26
LAW DICTIONARY 1095 (5th ed. 1979). Under section 32.46, the offense is complete
when a person causes another to execute a document with the intent to defraud or
harm. See Act of May 10, 1997, 75th Leg., R.S., ch. 189, § 2, Tex. Gen. Laws 1045,
1046; Smith v. State, 681 S.W.2d 71, 75-76 (Tex. App.—Houston [14th Dist.] 1983),
aff’d 722 S.W.2d 408 (Tex. Crim. App. 1986).
The charge the trial court submitted to the jury is based on Walker’s
falsification of the documents he presented to BISD to induce BISD to pay Walker’s
Electric for the work it performed at the two schools. The evidence allowed the jury
to reasonably conclude that Walker used the documents that he submitted to BISD
with the intent to make BISD pay Walker’s Electric money for materials it never
actually purchased or received from Summit. It is undisputed that Walker negotiated
the check for $1,285,064 that BISD issued Walker’s Electric for performing work at
Regina Howell and South Park. The “pecuniary interest” required by section 32.46
was met, since the evidence allowed the jury to conclude BISD had a financial stake
in paying a reasonable charge in return for the work Walker’s Electric performed at
the two schools. See Goldstein, 803 S.W.2d at 791. We conclude section 32.46 is
not unconstitutionally vague and reject Walker’s argument claiming that it is. See
Ex parte Lo, 424 S.W.3d at 15; Engelking, 750 S.W.2d at 215. We further conclude
section 32.46 provides persons of ordinary intelligence reasonable notice of what
27
conduct the statute prohibits. See Holcombe, 187 S.W.3d at 499. Accordingly, we
overrule issue one.
In issues two and three, Walker complains the trial court erred by denying his
motion to quash, claiming the indictment violates the United States and Texas
Constitutions because it does not provide him with notice of the facts the State
intended to rely on during his trial to prove he violated the statute. See U.S. CONST
amends. V, VI, XIV; Tex. Const. art. 1, §§ 10, 19. In reviewing rulings on motions
to quash, we apply a de novo standard. Lawrence v. State, 240 S.W.3d 912, 915 (Tex.
Crim. App. 2007). A defendant has a right to fair notice under the United States and
Texas Constitutions. See U.S. CONST. amend. VI; Tex. Const. art. I, § 10. To satisfy
the requirements of those Constitutions, the defendant’s indictment “must be
specific enough to inform the accused of the nature of the accusation against him so
that he may prepare a defense.” State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App.
2004). Generally, an indictment is sufficient if it tracks the language of the penal
statute the defendant is alleged to have violated if that statute also satisfies the
constitutional requirements regarding notice. See State v. Mays, 967 S.W.2d 404,
406 (Tex. Crim. App. 1998).
Here, the indictment tracks the statutory language in section 32.46. See Act of
May 10, 1997, 75th Leg., R.S., ch. 189, § 2, Tex. Gen. Laws 1045, 1046. Since the
statute provides notice to persons of ordinary intelligence of the conduct prohibited
28
by the statute, the indictment provided Walker with sufficient notice to allow him to
prepare his defense. See Lawrence, 240 S.W.3d at 917. For these same reasons, we
conclude the trial court did not err when it denied Walker’s motion to quash. We
overrule issues two and three.
In issue nine, Walker argues the evidence is insufficient to prove the elements
required to establish that he secured the execution of a document by deception, the
crime at issue in Walker’s indictment. To decide whether there is sufficient evidence
to support a finding of guilt, the reviewing court must “consider all the evidence in
the light most favorable to the verdict and determine whether, based on that evidence
and reasonable inferences therefrom, a rational juror could have found the essential
elements of a crime beyond a reasonable doubt.” Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979))
(other citations omitted). In doing so, we defer to the jury’s factual findings and
resolve all reasonable inferences in favor of their verdict, as the jury is the sole judge
of the credibility of witnesses and the weight to be afforded to the testimony of each.
Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014); Brooks v. State, 323
S.W.3d 893, 902 n.19 (Tex. Crim. App. 2010). The jury may choose to believe or
disbelieve any witness, or any portion of a witness’s testimony. Sharp v. State, 707
S.W.2d 611, 614 (Tex. Crim. App. 1986). We will uphold a jury’s verdict “unless a
reasonable juror must have had a reasonable doubt as to at least one of the elements
29
of the offense.” Runningwolf v. State, 360 S.W.3d 490, 494 (Tex. Crim. App. 2012)
(citation omitted).
A person commits the offense of securing execution of a document by
deception if, “with intent to defraud or harm any person, he, by deception . . . causes
another to sign or execute any document affecting property or service or the
pecuniary interest of any person . . . .” See Act of May 10, 1997, 75th Leg., R.S., ch.
189, § 2, Tex. Gen. Laws 1045, 1046. The offense is a felony of the first degree if
the value of the property, service, or pecuniary interest is $200,000 or more. Id. The
pecuniary interest requirement under section 32.46 is met if the evidence allows a
reasonable factfinder to conclude the alleged victim had a financial stake in the
matter. See Goldstein, 803 S.W.2d at 791.
Kingsley testified she signed check number 557268, the check for $1,285,064,
and made it payable to Walker based on the documents Walker submitted to BISD
to support the invoices he sent for the materials he used for South Park and Regina
Howell. Kingsley explained she relied on several documents that Walker submitted
when she decided to pay his two invoices, which included (1) a Summit delivery
receipt for $584,120 for the materials Walker purportedly used for South Park, a
receipt that is stamped as having been paid; (2) a copy of check number 3498 drawn
on Walker’s Electric account and payable to Summit for the materials tied to the
delivery receipt; (3) a second Summit delivery receipt for $584,120 for the materials
30
Walker’s Electric claimed it used on the Regina Howell project, a receipt that is
stamped as having been paid; and (4) a copy of check number 3497 drawn on
Walker’s Electric account and payable to Summit for the materials tied to the receipt.
Kingsley testified she would not have signed the check BISD issued and made
payable to Walker had she known the Summit delivery receipts and the invoices
Walker submitted to BISD were false. Kingsley further testified that Walker never
told BISD that Walker’s Electric had used its own materials for the projects and
providing the Summit delivery receipts was not a proper method to determine the
actual cost Walker’s Electric incurred for providing its own materials.
Rybacki testified that the Summit delivery receipts referencing Regina Howell
and South Park are not genuine Summit documents. Rybacki explained that Summit
did not sell Walker’s Electric the materials shown in the two delivery receipts that
Walker’s Electric gave to BISD. Rybacki also explained that while Walker’s Electric
represented it paid Summit for materials based on the two checks it purportedly
issued to Summit, check numbers 3497 and 3498, those two checks were neither
negotiated, nor paid. Nwachuku testified that Walker told the FBI that he sent BISD
the Summit delivery receipts for South Park and Regina Howell and the checks from
Walker’s Electric paying for the materials represented in those receipts. Nwachuku
also testified FBI agents discovered those checks in Walker’s home and found that
31
Walker’s Electric voided both checks, which Walker would not have done if the
checks had been paid.
Reynolds testified that based on his estimate that the actual cost of materials
for South Park and Regina Howell amounted to around $111,000; and therefore,
Walker charged BISD more than a reasonable amount for the work Walker’s Electric
performed. Finally, the jury heard that Walker stipulated that he had presented an
altered invoice to BISD in another case that involved another job, the invoice he
submitted was a quote and not an actual purchase, and BISD’s records contained
similar altered documents from the same electrical supplier.
Viewing the evidence in the light most favorable to the verdict and deferring
to the jury’s authority to decide the credibility of witnesses and the weight to give
their testimony, we conclude that a reasonable factfinder could have found, beyond
a reasonable doubt, that Walker secured the execution of a document by deception,
as alleged in the indictment. See Act of May 10, 1997, 75th Leg., R.S., ch. 189, § 2,
Tex. Gen. Laws 1045, 1046; Dobbs, 434 S.W.3d at 170; Hooper, 214 S.W.3d at 13.
We overrule issue nine.
In issue eight, Walker complains the State presented false and misleading
evidence from Kingsley, by improperly suggesting the maintenance contract
between Walker’s Electric and BISD is the contract that applies to the work Walker’s
Electric performed at Regina Howell and South Park. In his Motion in Limine,
32
Walker asked the trial court to prevent the State from suggesting that the
maintenance contract covered the projects at issue, because the work Walker’s
Electric performed was done pursuant to lump-sum agreements and were not jobs
that fell under Walker’s maintenance contract. According to Walker, Kingsley’s
false and misleading testimony led the jury to believe he had an obligation to provide
receipts to support his invoices on those jobs before BISD was obligated to pay the
invoices, and also led the jury to believe the work at the schools was done on a cost-
plus basis rather than the price he offered in his proposal. Walker argues that the
State’s presentation of Kingsley’s false and misleading evidence violated his Due
Process rights under the Fourteenth Amendment. See U.S. CONST amend. XIV.
A conviction obtained with false testimony is a denial of due process. Ex parte
Ghahremani, 332 S.W.3d 470, 477 (Tex. Crim. App. 2011). A violation of due
process occurs when the State elicits false testimony or when the State fails to correct
testimony that it knows to be false. Id. The prosecutor does not have to know the
testimony is false, instead it is sufficient if the prosecutor should have recognized
the misleading nature of the testimony. Id. A prosecutor’s knowing use of false
testimony violates due process when there is a “‘reasonable likelihood’ that the false
testimony affected the outcome[,]” or in other words, “the false testimony must have
been material.” Id. (citation omitted). This standard is equivalent to the standard for
constitutional error and requires proof, beyond a reasonable doubt, that the alleged
33
error did not contribute to the verdict. Id. at 478 (citing U.S. v. Bagley, 473 U.S. 667,
680 n.9 (1985)).
During the trial, defense counsel objected to Kingsley’s opinions about the
contract Walker was working under at the two schools, and defense counsel fully
cross-examined Kingsley about her opinions. The jury is the sole judge of the weight
and credibility of the evidence. See Tex. Code Crim Proc. Ann. art. 38.04; Blea v.
State, 483 S.W.3d 29, 33 (Tex. Crim. App. 2016) (citation omitted). There is no
evidence in the record showing the prosecutor knowingly presented any false
testimony or should have recognized the misleading nature of any of the testimony.
See Ex parte Ghahremani, 332 S.W.3d at 477. Nor is there a “‘reasonable
likelihood’” that the alleged false testimony was “material” or contributed to the
verdict, because the issue was not which contract applied to Walker’s work, but
whether the jury believed he engaged in deception by submitting fraudulent
documents to BISD to obtain payment. See id. We conclude no violation of due
process occurred. We overrule issue eight.
In issue seven, Walker argues the trial court erred by failing to include the
definition of “value” in the jury instruction and by failing to instruct the jury that the
terms of the maintenance contract did not apply to Walker’s case. When reviewing
an alleged charge error, we determine whether error exists in the charge and, if so,
whether sufficient harm resulted from the error to compel reversal. Ngo v. State, 175
34
S.W.3d 738, 744 (Tex. Crim. App. 2005). If no error occurred, our analysis ends.
See Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012) (noting that if error
occurred, then the court must conduct a harm analysis). If the alleged charge error
was the subject of a timely objection in the trial court, then reversal is required if the
error is “‘calculated to injure the rights of defendant,’ which means no more than
that there must be some harm to the accused from the error.” Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). In other words, if the alleged
error was properly preserved, it will call for reversal as long as the error is not
harmless. Id. To determine the degree of harm, a reviewing court should consider
“the entire jury charge, the state of the evidence, . . . argument of counsel[,] and any
other relevant information revealed by the record of the trial as a whole.” Id.; see
also Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008).
Abstract or definition paragraphs serve as a kind of glossary to assist the jury
in understanding the meaning of terms used in the application paragraphs of the
charge. Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012); Plata v.
State, 926 S.W.2d 300, 302 (Tex. Crim. App. 1996), overruled on other grounds by
Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997). Abstractions that are not
necessary to an understanding of the terms in the application paragraphs are
generally innocuous. See Plata, 926 S.W.2d at 302-03. The failure to give an abstract
35
instruction is reversible only when such an instruction is necessary to a correct or
complete understanding of a term in the application part of the charge. Id. at 302.
The indictment alleges that Walker caused Kingsley to sign or execute a
document affecting the pecuniary interest of BISD and that the value of said
pecuniary interest was $200,000 or more. The record shows that Walker’s counsel
requested that the definition of “value” under section 32.02 be included in the jury
charge. The trial judge denied the request, explaining that while “pecuniary value”
is not defined under the statute, the case law explains that whether pecuniary value
results in a loss is a matter for the jury and their collective understanding of the term.
In our analysis of issue one we have already explained that since the term “pecuniary
interest” is not defined under section 32.46, we must give it its plain and ordinary
meaning. Ordinarily, “pecuniary interest” is defined as a direct interest related to
money in an action or case. See Parker, 985 S.W.2d at 464; Goldstein, 803 S.W.2d
at 791; Pecuniary Interest, BLACK’S LAW DICTIONARY 1095 (5th ed. 1979). We also
concluded the record shows the pecuniary interest requirement under section 32.46
was met based on the evidence showing BISD had a financial stake in the matter
given the amount it paid Walker’s Electric for its work at the schools and the
fraudulent documents Walker submitted. See Goldstein, 803 S.W.2d at 791;
Pecuniary Interest, BLACK’S LAW DICTIONARY 1095 (5th ed. 1979). The value of
BISD’s pecuniary loss from Walker’s fraud exceeded the $200,000 alleged in the
36
indictment. Nothing in the record indicates that the absence of a definition of “value”
in the charge prevented the jury from calculating the pecuniary interest BISD lost by
virtue of Walker’s fraud. See Crenshaw, 378 S.W.3d at 466; Plata, 926 S.W.2d at
302. We conclude that the trial court’s failure to define the term “value” in its charge
was harmless.
The record also shows that Walker’s counsel requested the trial court to
instruct the jury that the maintenance contract referred to during the trial did not
apply to the work Walker performed at South Park and Regina Howell since that
work was controlled by another standalone contract. “The purpose of the jury charge
is to inform the jury of the applicable law and guide them in its application to the
case[.]” Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). A trial court
must maintain neutrality and not draw the jury’s attention to particular facts to
prevent the jury from interpreting a judge’s comments as a judicial endorsement or
imprimatur. Beltran De La Torre v. State, 583 S.W.3d 613, 617 (Tex. Crim. App.
2019). Trial courts should also “avoid including non-statutory instructions in the
charge because such instructions frequently constitute impermissible comments on
the weight of the evidence.” Id.Walker’s request asking the trial court to require the jury to disregard the
maintenance contract sought an instruction that would have drawn the jury’s
attention to specific facts. According to Walker, the heart of his defense was that the
37
South Park and Regina Howell jobs were standalone contracts not covered by the
maintenance contract he had with BISD. Since the jury could have interpreted the
trial court’s endorsement of Walker’s defensive theory in evaluating the evidence,
we conclude the trial court did not err by denying the instruction because it would
have been a prohibited comment on the weight of the evidence. See id.Here, the charge as submitted focused the jury on the facts at issue, whether
Walker deceived BISD by submitting fraudulent documents to support BISD’s
impending decision on whether to pay Walker for the work Walker’s Electric
performed at the two schools. Thus, the requested instruction would not have
informed the jury of the law that applied or guided the jury in applying the law to
the facts that were relevant to deciding the disputed issue in the trial. See Hutch, 922
S.W.2d at 170. We overrule issue seven.
In issues four, five, and six, Walker complains that the restitution order should
be deleted because: (1) the trial court did not order restitution in its oral
pronouncement or in its original written judgment; (2) the trial court lacked plenary
power to enter the restitution order; and (3) the Fifth Amendment’s Double Jeopardy
Clause bars the restitution order that was entered ninety-nine days after entry of the
oral and written judgment.
There are two scenarios in which it is appropriate for an appellate court to
delete a written restitution order: (1) when the trial court lacks statutory authority to
38
impose the specific restitution order; and (2) when the trial judge is authorized to
assess restitution, but the evidence fails to show proximate cause between the
defendant’s conduct and the victim’s injury. Burt v. State, 445 S.W.3d 752, 757-58
(Tex. Crim. App. 2014). Article 42.037(e) of the Texas Code of Criminal Procedure
provides that the imposition of the order of restitution may not unduly complicate or
prolong the sentencing process. Tex. Code Crim. Proc. Ann. art. 42.037(e). The
language in article 42.037(e), which includes restitution in the sentencing process,
implies that restitution is imposed as part of the original sentence and that the
sentence is not complete until restitution is imposed. See id.; Bailey v. State, 160
S.W.3d 11, 15 (Tex. Crim. App. 2004); Schultz v. State, No. 09-09-00161-CR, 2009
WL 5549307, at *2-3 (Tex. App.—Beaumont Jan. 27, 2010, no pet.) (mem. op., not
designated for publication). Article 42.01(25) of the Texas Code of Criminal
Procedure also provides that if the trial court orders restitution to be paid to the
victim, the judgment should include a statement of the amount of restitution the
defendant is being ordered to pay. Tex. Code Crim. Proc. Ann. art. 42.01(25).
The record shows that Walker’s defense considered that the trial judge might
order restitution as a condition of Walker’s probation. For example, during Walker’s
punishment hearing, defense counsel cross-examined Thomas about possible
restitution. In closing argument, defense counsel mentioned that the trial judge could
order restitution. In October 2019, the trial court pronounced judgment, suspended
39
Walker’s punishment of ten years of confinement, placed Walker on probation for a
period of ten years, and indicated the court would conduct another hearing and
impose any remaining conditions relevant to Walker’s probation after he received
Walker’s post-sentence report. On November 5, 2019, Walker filed his Sentencing
Memoranda, in which he argued the trial court should not order restitution.
On November 6, 2019, the trial court conducted a hearing on Walker’s
probation conditions and signed a Community Supervision Order that listed
Walker’s conditions of community supervision, including paying restitution in an
amount later determined by the court. The trial court told the parties that article
42.037 of the Texas Code of Criminal Procedure authorized the court to order
restitution as a term of probation and explained it was clear to everyone that the
probation terms would be determined after the post-sentence report, and there was
no objection when the trial court pronounced that it intended to conduct another
hearing to decide the amount of restitution. Walker was on notice that the court was
making restitution a part of Walker’s sentence. See Burt, 445 S.W.3d at 759.
On January 8, 2020, the trial court conducted a hearing to decide what amount
to award in restitution. Following the January 2020 hearing, the trial court orally
pronounced and ordered Walker to pay BISD $1,172,656.01 in restitution and
40
entered an Order of Restitution and a Judgment Nunc Pro Tunc 2 that same day to
include the amount of restitution pronounced in open court.
Under the language used in article 42.037(e), we conclude the trial court did
not complete sentencing Walker until the January 8, 2020 hearing when it decided
the amount to award as restitution. See Bailey, 160 S.W.3d at 15; Schultz, 2009 WL
5549307, at *2-3. As such, that was a continuation of Walker’s original sentencing
hearing that was conducted in October 2019. See Tex. Code Crim. Proc. Ann. art.
42.037(e); Bailey, 160 S.W.3d at 14-15.3 In the January 2020 hearing, the trial court
pronounced Walker was being ordered to pay BISD $1,172,656.01 in restitution, the
final condition imposed on Walker’s probation and the term required to make the
judgment in Walker’s case whole. See Arguijo v. State, 738 S.W.2d 367, 369 (Tex.
App.—Corpus Christi 1987, no pet.). The trial court also denied Walker’s motion
for new trial in the January 2020 hearing. The record shows that when the trial court
conducted the January 2020 hearing, it still had plenary power over Walker’s case.
We conclude the trial court ordered the payment of restitution as required by
article 42.037 and imposed Walker’s sentence, a sentence that includes the
restitution the trial court ordered during the January 2020 hearing. We further
2
Because we have concluded that the sentencing was not completed until the
trial court orally announced the amount of the restitution, we need not determine
whether the trial court correctly labeled the Judgment entered at the conclusion of
the January 2020 hearing as a “nunc pro tunc.”
41
conclude Walker’s argument claiming the Fifth Amendment’s Double Jeopardy
Clause bars the order of restitution lacks merit because the trial court was authorized
to order restitution under article 42.037. See Burris v. State, 172 S.W.3d 75, 77 (Tex.
App.—Fort Worth 2005, no pet.) (stating that double jeopardy is not violated when
the Code of Criminal Procedure authorizes the sentencing procedure the trial court
relied on when sentencing the defendant). For these reasons, we overrule issues four,
five, and six. Having overruled Walker’s issues, we affirm the trial court’s judgment.
AFFIRMED.
_________________________
W. SCOTT GOLEMON
Chief Justice
Submitted on June 4, 2021
Opinion Delivered February 9, 2022
Publish
Before Golemon, C.J., Horton and Johnson, JJ.
42