Phillip James Moore v. State ( 2013 )

Affirmed and Memorandum Opinion filed November 5, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-01010-CR
PHILLIP JAMES MOORE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Cause No. 1360768
MEMORANDUM OPINION
A jury convicted appellant, Phillip James Moore, of engaging in organized
criminal activity. In three issues, appellant contends he received ineffective
assistance of counsel, the evidence is factually insufficient to support his
conviction, and the evidence is legally insufficient to support punishment
enhancement. We affirm.
I. BACKGROUND
This case involves an organized credit-fraud scheme operated by appellant,
Derek Holt, and Andrea Daniels. According to the State’s evidence, Daniels, who
worked for the Department of Family and Protective Services, would provide
appellant with the names, social security numbers, addresses, and other
information of adoption applicants. Holt created fraudulent identification cards
based on the stolen identifying information. Appellant would then use the
identification cards and stolen information to apply for credit with various
department stores and credit-card companies and use the credit to purchase items
for the three of them.
After receiving information regarding the scheme, investigators with the
Harris County District Attorney’s Office, including Investigators Kleindienst and
Antonello, began monitoring appellant. Investigators followed appellant to a
Livingston Sears and a Home Depot and learned he used false identification to
attempt to set up credit accounts at both stores. The following day, investigators
observed appellant drive to the Sharpstown Mall parking lot where Holt handed
appellant a “business card size” envelope. Appellant then drove to the Deerbrook
Mall where he attempted, but failed, to open a credit account at Sears by
fraudulently using someone else’s information. Appellant immediately proceeded
to Macy’s and successfully opened a credit account using the information.
Based on evidence gathered during their surveillance, investigators obtained
search and arrest warrants. When they searched appellant’s apartment and vehicle,
investigators found a plethora of other individuals’ identifying information and
several counterfeit driver licenses. Investigators also eventually discovered that
appellant had been exchanging text messages with Daniels and Holt regarding
other individuals’ identifying information.
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Appellant was charged with the first-degree felony of engaging in organized
criminal activity by, and with intent to establish, maintain, and participate in a
combination with Daniels and Holt, unlawfully committing fraudulent use or
possession of at least ten but less than fifty items of identifying information of
certain individuals. See Tex. Penal Code Ann. § 71.02(a)(8) (West Supp. 2012);
see also id. § 32.51(b) (West Supp. 2012) (identification fraud). A jury convicted
appellant and, after finding an enhancement paragraph “true,” assessed punishment
at thirty-eight years’ confinement.1
II. INEFFECTIVE ASSISTANCE OF COUNSEL
In his first issue, appellant contends he received ineffective assistance of
counsel.
A. Standard of Review
To prevail on an ineffective-assistance claim, an appellant must prove (1)
counsel’s representation fell below the objective standard of reasonableness, and
(2) there is a reasonable probability that, but for counsel’s deficiency, the result of
the proceeding would have been different. Strickland v. Washington, 466 U.S.
668, 687, 694 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.
1999). In considering an ineffective-assistance claim, we indulge a strong
presumption that counsel’s actions fell within the wide range of reasonable
professional behavior and were motivated by sound trial strategy. Strickland, 466
U.S. at 689; Thompson, 9 S.W.3d at 813; Jackson v. State, 877 S.W.2d 768, 771
(Tex. Crim. App. 1994). To overcome this presumption, a claim of ineffective
assistance must be firmly demonstrated in the record. Thompson, 9 S.W.3d at 814.
In most cases, direct appeal is an inadequate vehicle for raising such a claim
1
With the enhancement offense, appellant’s range of punishment was fifteen years to
ninety-nine years or life. See Tex. Penal Code Ann. § 12.42(c)(1) (West Supp. 2012).
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because the record is generally undeveloped and cannot adequately reflect the
motives behind trial counsel’s actions. Rylander v. State, 101 S.W.3d 107, 110–11
(Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813–14. When the record is silent
regarding trial counsel’s strategy, we will not find deficient performance unless the
challenged conduct was “so outrageous that no competent attorney would have
engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
B. Analysis
Appellant contends counsel was ineffective by not calling co-defendants
Daniels and Holt and appellant to testify. It is trial counsel’s prerogative, as a
matter of trial strategy, to decide which witnesses to call. Weisinger v. State, 775
S.W.2d 424, 427 (Tex. App.—Houston [14th Dist.] 1989, pet. ref’d). An
ineffective-assistance claim may be based upon an attorney’s failure to present
witnesses only if appellant can show that witnesses were available and their
testimony would have benefitted appellant. Brooks v. State, 357 S.W.3d 777, 791
(Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).
Appellant argues no competent attorney would have failed to call Daniels
and Holt because they were indispensible members of the alleged combination and
were discussed throughout trial. Appellant asserts Daniels’s and Holt’s testimony
would have established appellant was the least culpable member of the
combination, resulting in a less severe punishment for appellant. However,
appellant does not cite any portion of the record supporting that Daniels and Holt
would have provided exculpatory testimony or that they were even available to
testify.2 Moreover, the evidence presented at trial strongly supports that appellant
2
Appellant does assert that a portion of the prosecutor’s opening statements proves
Daniels and Holt were available to testify. However, in the cited portion, the prosecutor merely
described how Daniels and Holt were involved in the combination, not that they were presently
available to testify.
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was an active participant in the combination and not a gullible pawn working under
Daniels and Holt. Accordingly, appellant has not established that counsel provided
ineffective assistance by not calling the co-defendants.
Similarly, appellant argues that if he had been called to testify “he likely
would have received a shorter sentence.” Again, appellant fails to cite the record
in support of this assertion, and his assertion that he would have benefitted from
his own testimony is mere speculation.
Appellant also contends nothing in the record indicates counsel advised
appellant about testifying on his own behalf or that appellant waived this right. See
Smith v. State, 286 S.W.3d 333, 338 n. 9 (Tex. Crim. App. 2009) (explaining
defendant—not counsel—may waive defendant’s constitutional right to testify on
own behalf); see also Johnson v. State, 169 S.W.3d 223, 235 (Tex. Crim. App.
2005) (“[D]efense counsel shoulders the primary responsibility to inform the
defendant of his right to testify, including the fact that the ultimate decision
belongs to the defendant.”). Appellant argues counsel should have ensured that the
record reflected whether appellant waived his right to testify. However, appellant
cites no authority to support the proposition. Moreover, appellant has not made
any post-trial record regarding what his testimony would have been had he
testified. Thus, appellant has not established that, had he testified, there is a
reasonable probability the result of the proceeding would have been different. See
Carballo v. State, 303 S.W.3d 742, 751 (Tex. App.—Houston [1st Dist.] 2009, pet.
ref’d) (rejecting similar ineffective-assistance claim because “it is not possible to
determine whether the result of the punishment proceeding would have been
different if defense counsel had questioned appellant regarding his version of the
events”). Accordingly, we overrule appellant’s first issue.
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III. SUFFICIENCY OF THE EVIDENCE
In his second issue, appellant contends the evidence is factually insufficient
to support his conviction. The Court of Criminal Appeals has abolished factual-
sufficiency review, holding sufficiency of the evidence is reviewed only for legal
sufficiency. See Howard v. State, 333 S.W.3d 137, 138 (Tex. Crim. App. 2011).
We will consider appellant’s second issue under the legal-sufficiency standard of
review.
A. Standard of Review
When determining whether evidence is legally sufficient to support the
verdict, we view all of the evidence in the light most favorable to the verdict and
determine, based on that evidence and any reasonable inferences therefrom,
whether any rational fact finder could have found the elements of the offense
beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App.
2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). We do not sit as
a thirteenth juror and may not substitute our judgment for that of the fact finder by
re-evaluating weight and credibility of the evidence. Isassi v. State, 330 S.W.3d
633, 638 (Tex. Crim. App. 2010). Rather, we defer to the responsibility of the fact
finder to fairly resolve conflicts in testimony, weigh the evidence, and draw
reasonable inferences from basic facts to ultimate facts. Id. This standard applies
equally to both circumstantial and direct evidence. Id. Circumstantial evidence is
as probative as direct evidence in establishing guilt of an actor, and circumstantial
evidence alone can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). Our duty as reviewing court is to ensure the evidence
presented actually supports a conclusion that the defendant committed the crime.
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
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B. Analysis
Appellant does not contend the evidence is insufficient to support any
particular element of engaging in organized criminal activity. Instead, appellant
argues that several witnesses testified they did not personally observe appellant
engage in fraudulent activities. However, appellant fails to mention substantial
additional evidence which strongly demonstrates that he was engaging in ongoing
fraudulent activity, including the vast amount of stolen identification information
found in appellant’s apartment and vehicle and text messages between appellant,
Daniels, and Holt. Appellant’s sufficiency challenge appears to be more about the
weight of the incriminating evidence than the absence of such evidence. As noted
above, we must defer to the jury’s decision regarding how much weight to afford
the evidence. See Isassi, 330 S.W.3d at 638. Accordingly, appellant has not
established that the evidence is legally insufficient to support his conviction.
Nevertheless, we will address his complaints regarding the weight of the evidence.
Appellant argues Investigator Kleindienst did not observe appellant enter the
Livingston Sears, nor did Investigator Antonello observe appellant present an
identification card at the Livingston Sears or Home Depot. But Investigator
Antonello testified that he met with the manager of the Livingston Sears and
learned appellant had used a name other than his own when attempting to conduct
a transaction. Investigator Antonello further testified that he learned appellant
used someone else’s name at Home Depot when trying to obtain credit or other
services.
Appellant also argues Investigator Kleindienst never actually saw appellant
fill out a credit application at the Deerbrook Sears, and the Sears employee who
assisted the applicant was unable to identify him. However, the fact that someone
made a fraudulent credit application at the Sears using the name “Everett Swint”
7
moments before appellant exited Sears and proceeded to Macy’s where he opened
a credit account under the name “Everett Swint” is strong circumstantial evidence
that appellant was the culprit. Moreover, officers later found in appellant’s truck a
fake driver license bearing the name “Thomas Everett Swint” but with appellant’s
photograph.
Appellant complains that Investigator Kleindienst testified he does not know
exactly what Holt handed appellant in the Sharpstown Mall parking lot, except that
the item was a “business card size object.” Appellant does not explain why the
jury needed to determine what this item was to find appellant guilty of the charged
offense. Regardless, text messages sent between appellant and Holt on the day
they met at the Sharpstown Mall pertained to the meeting, “addresses,” “dl”
(meaning driver license), and ordering a credit card online. Furthermore,
investigators found fraudulent identification cards in Holt’s house with code
numbers matching the code numbers on some of the fraudulent identification cards
found in appellant’s apartment. Accordingly, there is sufficient evidence
supporting a finding that appellant and Holt were jointly involved in a credit-fraud
scheme.
Lastly, appellant contends the State’s computer-technician witness testified
he does not have personal knowledge of whether appellant was the person who
made a certain false online credit application under the name “Thomas Swint.”
However, the evidence supports a finding that Swint was a person whose identity
was stolen, whose information was entered on this online credit application, and
whose information appellant fraudulently used at the Deerbrook Mall. We
overrule appellant’s second issue.
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IV. ENHANCEMENT OFFENSE
In his third and final issue, appellant contends the evidence is legally
insufficient to support the finding that he was convicted of the charged
enhancement offense.
A. Standard of Review
The Court of Criminal Appeals applies a legal-sufficiency analysis in
reviewing punishment enhancement, viewing the evidence in the light most
favorable to the verdict and determining whether a rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt. See Jordan
v. State, 256 S.W.3d 286, 289 (Tex. Crim. App. 2008); Salinas v. State, 163
S.W.3d 734, 737 (Tex. Crim. App. 2005). To establish that a defendant has been
convicted of a prior offense, the State must prove beyond a reasonable doubt that
(1) a prior conviction exists and (2) the defendant is linked to that conviction.
Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). The trier of fact
must look at the totality of the evidence admitted to determine whether those two
elements were proven beyond a reasonable doubt. Id. at 921, 923.
B. Analysis
For punishment enhancement purposes, the State alleged appellant was
convicted of tampering with a governmental record on August 14, 2003 in cause
number 2001-610-C in the 54th District Court of McLennan County, to which
appellant pleaded “Not true.” To prove this enhancement, the State presented a
“pen packet” from the Texas Department of Criminal Justice – Correctional
Institutions Division containing documents related to cause number 2001-610-C
and cause number 86142, a photograph of appellant, and a fingerprint card for
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“Phillip James Moore.” Pertaining to cause number 2001-610-C, the pen packet
included the following:
A December 5, 2001 judgment and probation order reflecting that a person
named “PHILLIP JAMES MOORE” pleaded guilty to tampering with a
governmental record, and the trial court found the person guilty, sentenced
him, and probated punishment. This judgment was signed by “Phillip James
Moore” and bore a thumbprint.
An August 14, 2003 judgment revoking probation and reflecting that a
person named “PHILLIP JAMES MOORE” pleaded true to revocation
allegations, and that the trial court assessed punishment at three years’
confinement. This judgment was also signed by “Phillip James Moore” and
bore a thumbprint, but the print is smudged and indecipherable.3
A finger-print examiner testified that the fingerprint card contained in the
pen packet matched appellant’s known prints. However, the examiner also
testified that the smudged thumbprint on the August 14, 2003 judgment revoking
probation could not be compared with appellant’s known prints.4 Following the
examiner’s testimony, appellant made an oral motion to quash the enhancement,
which the trial court denied.
Appellant contends that because the thumbprint on the August 14, 2003
judgment revoking probation could not be compared with appellant’s known
3
In its brief, the State notes appellant was convicted in cause number 2001-610-C on
December 5, 2001, and the August 14, 2003 judgment merely indicates that appellant’s probation
had been revoked. Thus, according to the State, the actual date of appellant’s enhancement
conviction was December 5, 2001, and the variance between the date in the enhancement
allegation and actual date of conviction is not fatal. See Davis v. State, 684 S.W.2d 201,
210 (Tex. App.—Houston [1st Dist.] 1984, pet. ref’d) (“The indictment’s incorrect allegation of
the date of final conviction for the prior offense would not have prevented the appellant from
finding the record of it and presenting a defense. The variance was not fatal[.]”). We do not
address this issue because appellant does not raise it and the evidence is sufficient to prove
appellant was the defendant referenced in both the December 5, 2001 and August 14, 2003
judgments.
4
The examiner did not expressly testify the thumbprint on the December 5, 2001
judgment belonged to appellant.
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fingerprints, the State failed to present legally sufficient evidence that appellant is
the defendant referenced in the judgment. In support, appellant cites cases in
which courts held the fact the defendant has the same name as the person
mentioned in a prior judgment is not sufficient evidence to link him to the
judgment. See, e.g., Franklin v. State, 227 S.W.2d 814, 814–15 (Tex. Crim. App.
1950). However, appellant cites no authority supporting that the judgment itself,
rather than the pen packet, must contain the matching fingerprint. The Court of
Criminal Appeals has “consistently held that a prior conviction alleged for
enhancement . . . may be established by certified copies of a judgment and a
sentence and authenticated copies of the Texas Department of Corrections records
including fingerprints, supported by expert testimony identifying them as known
fingerprints of the defendant.” Beck v. State, 719 S.W.2d 205, 209 (Tex. Crim.
App. 1986); accord Varnes v. State, 63 S.W.3d 824, 834 (Tex. App.—Houston
[14th Dist.] 2001, no pet.).
The examiner testified the pen packet contained a fingerprint card that
matches appellant’s known prints. Additionally, the fingerprint card mentions
“TAMP W/GOVT RECORD(1),” “3 YRS,” and the number “1211088,” and the
packet included clear photographs of appellant with the number “1211088.” As
noted above, the August 14, 2003 judgment revoking probation indicates that
“PHILLIP JAMES MOORE” had been convicted of tampering with a government
record and sentenced to three years’ confinement. Additionally, in an affidavit
attached to the pen packet, an employee with the Texas Department of Criminal
Justice – Correctional Institutions Division certified that the documents in the pen
packet related to “MOORE, PHILLIP JAMES,” “TDCJ/BPP# 1211088,” and
cause number 2001-610-C are true and correct copies of business records
maintained by the department. We hold the evidence is legally sufficient to
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support a finding beyond a reasonable doubt that appellant was the person
convicted of the enhancement offense. See Davila v. State, 930 S.W.2d 641, 652–
53 (Tex. App.—El Paso 1996, pet. ref’d) (holding fingerprint card located in pen
packet, but not stapled to the packet, was sufficient to prove defendant was person
referenced in pen-packet documents, particularly because fingerprint card
contained defendant’s name and prisoner number and defendant’s photograph was
included in the pen packet); cf. also 43A George E. Dix & John M. Schmolesky,
Texas Practice Series: Criminal Practice & Procedure § 46:108 (3d ed. 2011) (“It
should become increasingly unnecessary to use either jail cards or penitentiary
packets as proof of prior convictions. Those documents contain fingerprints and
include or make reference to the judgment in the prior case.”).5 We overrule
appellant’s third issue.
We affirm the trial court’s judgment.
/s/ John Donovan
Justice
Panel consists of Justices Christopher, Donovan, and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).
5
Appellant also complains the evidence is insufficient to support a finding that he was
convicted of several other extraneous offenses not designated as enhancement offenses. We do
not review the sufficiency of the evidence supporting extraneous offenses presented during
punishment but, in the interest of justice, will construe appellant’s argument as a complaint about
the admission of extraneous offenses. See Palomo v. State, 352 S.W.3d 87, 94–95 (Tex. App—
Houston [14th Dist] 2011, pet. ref’d). Nonetheless, appellant did not preserve an admission-of-
evidence complaint because he failed to object to the admission of evidence regarding these
extraneous offenses. See Malpica v. State, 108 S.W.3d 374, 378–79 (Tex. App.—Tyler 2003,
pet. ref’d).
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