William Paul Hudson v. State ( 2015 )

AFFIRM; and Opinion Filed March 20, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00224-CR
No. 05-14-00225-CR
No. 05-14-00226-CR
WILLIAM PAUL HUDSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause Nos. 416-82440-2011, 416-82442-2011, & 416-82443-2011
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Whitehill
Opinion by Justice Lang-Miers
A jury convicted William Paul Hudson of theft, securities fraud, and money laundering
arising out of a continuing scheme to defraud and steal money from investors in an oil and gas
well rework project referred to as the Gulf Coast project. The trial court assessed punishment at
ten years in prison on each charge, but suspended the imposition of the sentence in the securities
fraud and money laundering cases, placed appellant on community supervision in those two
cases, and ordered him to pay over $600,000 in restitution to the victims as a condition of
community supervision.
On appeal, appellant argues that (1) convicting him of both theft and money laundering
violated the Double Jeopardy Clause; (2) the evidence is insufficient to show he unlawfully
appropriated and possessed $200,000 or more; (3) the jury charge improperly relieved the State
of its burden of proof; (4) the trial court abused its discretion by ordering restitution; and (5) the
sentences are improper because they will result in consecutive punishment and certain revocation
of his community supervision. For the reasons that follow, we affirm the trial court’s judgments.
BACKGROUND
Appellant owned PH Consulting, LLC through which he and his sales agents solicited
funds for alleged investment in the Gulf Coast project between April 2007 and January 2008.
PH Consulting received over $500,000 in revenue from numerous victims. The Gulf Coast
project was sold as a rework of three existing oil wells and promoted as a cheaper alternative to
drilling new wells with a low-risk investment. The project was also supposed to be completed
within a short time frame so that investors would receive a return on their investment quickly.
PH Consulting provided prospective investors a prospectus and other documentation stating that
investor funds would be kept in an escrow account and used solely for the Gulf Coast project.
Some investors became concerned when they did not receive confirmation of their
investment from PH Consulting or updates from appellant about the status of the project. They
began calling appellant and the other sales agents at PH Consulting, but were mostly
unsuccessful in reaching them. When they did talk to or exchange email communications with
appellant, he gave various reasons for the delays in the project. In a couple of instances,
appellant promised to return the investors’ money, but never did. The Gulf Coast project never
materialized.
Pursuant to a complaint, the Texas State Securities Board investigated PH Consulting and
appellant. An investigator with the State Securities Board determined that the interests PH
Consulting was selling in the Gulf Coast project were securities, but that appellant and his sales
agents were not licensed to sell securities in Texas. Appellant voluntarily met with the
investigator and provided numerous documents concerning PH Consulting and the Gulf Coast
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project. He told the investigator that the Gulf Coast project was a “joint venture” and, as such,
was not a security requiring a license to sell. He also told the investigator that he had used
money received from investors on administrative costs, profit sharing (sales agent commissions),
and some personal expenses.
A financial examiner with the State Securities Board examined PH Consulting’s bank
accounts and other documentation and identified over $500,000 in revenue PH Consulting
received from investors for the Gulf Coast project, none of which had been placed in an escrow
account or used for oil-venture related expenses. Instead, the funds were used to pay sales
agents, stores, restaurants, apartment rent, house payments, a pool service, a church, utilities,
cleaning services, medical costs, and school expenses. Appellant said his accountant told him it
was not a problem to run his personal expenses through the company’s account.
As a result of the State Securities Board’s investigation, the State indicted appellant for
theft, securities fraud, and money laundering as part of a scheme and continuing course of
conduct. The State alleged there were over thirty victims of this scheme and the aggregate value
of the property appropriated and possessed was $200,000 or more. Appellant pleaded not guilty
to a jury, and these convictions resulted.
ISSUE ONE: DOUBLE JEOPARDY CLAIM
In issue one, appellant argues that he was punished twice for the same offense, violating
the Double Jeopardy Clause. He contends that “the Theft alleged as a predicate offense in the
Money Laundering indictment is identical to the offense alleged in the Theft indictment” and that
punishment for both money laundering and theft violate double jeopardy. He concedes that he
did not raise this multiple-punishment issue below and is excused from the preservation
requirement only if (1) the undisputed facts show the double jeopardy violation is clearly
apparent on the face of the record, and (2) enforcement of the usual rules of procedural default
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serves no legitimate state interests. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App.
2000). He applies the “elements” test explained in Garfias v. State, 424 S.W.3d 54, 58 (Tex.
Crim. App. 2014) (citing Blockburger v. United States, 284 U.S. 299 (1932)), and argues that the
record on its face shows a double jeopardy violation.
The State argues that when a defendant is prosecuted in one trial for multiple offenses
that arise out of the same conduct, “the ultimate question is simply whether the legislature
intended to allow the same conduct to be punished under both offenses.” Citing the money
laundering statute, the State argues that the “unambiguous expression of legislative intent” here
is that both punishments are authorized. We agree with the State.
“A double jeopardy claim based on multiple punishments arises when the State seeks to
punish the same criminal act twice under two distinct statutes under circumstances in which the
Legislature intended the conduct to be punished only once.” Shelby v. State, 448 S.W.3d 431,
435 (Tex. Crim. App. 2014) (citing Langs v. State, 183 S.W.3d 680, 685 (Tex. Crim. App.
2006)). The primary consideration in a multiple-punishment double jeopardy claim is legislative
intent. Id; Langs, 183 S.W.3d at 685 n.15 (citing Missouri v. Hunter, 459 U.S. 359 (1983)).
The unambiguous language of the money laundering statute expresses the legislature’s
intent to authorize multiple punishments for conduct that constitutes both money laundering and
“an offense under any other law”:
(h) If conduct that constitutes an offense under this section also constitutes an
offense under any other law, the actor may be prosecuted under this section, the
other law, or both.
TEX. PENAL CODE ANN. § 34.02(h) (West 2011). Because we have a clear expression of the
legislature’s intent to authorize multiple punishments for money laundering and “any other law,”
in this case theft, we do not need to construe the statutes to determine whether they proscribe the
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same conduct under the Blockburger “elements” test. Langs, 183 S.W.3d at 685 n.15 (quoting
Hunter, 459 U.S. at 368–69.)
We conclude that a double jeopardy violation is not clearly apparent on the face of the
record and appellant has not met the first prong of the exception to the preservation requirement.
Consequently, appellant has not preserved his double jeopardy claim for our review. We resolve
issue one against appellant.
ISSUE TWO: SUFFICIENCY OF THE EVIDENCE
In issue two, appellant argues that the evidence is insufficient to support the theft and
money laundering convictions with regard to one element of each offense: the value of the
property appropriated (theft) and possessed (money laundering). See TEX. PENAL CODE ANN.
§§ 31.03(a) (West Supp. 2014) (stating elements of theft), 34.02(a)(1) (stating elements of
money laundering).
In determining a sufficiency issue, we review the record in the light most favorable to the
verdict to determine whether a rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v.
State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). The jury is the sole judge of the weight and
credibility of the evidence and resolves all conflicts in the evidence. Montgomery v. State, 369
S.W.3d 188, 192 (Tex. Crim. App. 2012).
The State indicted appellant for theft and money laundering of property with a value of
$200,000 or more. Appellant claims that eight of the victims testified they were defrauded out of
$107,000 to $108,000, but that “[t]he record provides no such insight regarding the remaining
named investors.” 1 Although appellant acknowledges that the State offered “documents showing
1
Appellant does not include a single reference to the record in the argument section of his brief on this issue, and his citations to the record in the
statement of facts section are only to the first page of each witness’s testimony. See TEX. R. APP. P. 38.1(g), (i) (requiring brief to include
appropriate citations to record); see also Mosley v. State, 494 S.W.2d 557, 558 (Tex. Crim. App. 1973). The State called 12 witnesses at trial
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these [remaining] investors did make the investment amounts alleged,” he contends that “the
record remains silent as to other communications between [him] and these investors, and, as
such, no reasonable jury could have found beyond a reasonable doubt that he committed theft or
money laundering with regard to their investments.”
We construe appellant’s argument to contend that the evidence is insufficient to show he
appropriated and possessed $200,000 or more because the State’s documentary evidence is
insufficient to show the dollar amounts sent to PH Consulting by the non-testifying victims and,
without that evidence, at most the State proved he appropriated and possessed about $108,000.
Appellant complains about the State’s documentary evidence of the non-testifying victims’
losses, but appellant stipulated to the admission for all purposes of an exhibit that contained
copies of checks totaling $217,322 delivered to PH Consulting by many of those victims for
participation in the Gulf Coast project. He also had “no objection” to four other exhibits that
contained copies of checks from other victims totaling $36,505. This evidence alone shows
appellant appropriated and possessed over $250,000.
Additionally, in 2010, PH Consulting filed for bankruptcy and in its bankruptcy filing,
PH Consulting listed the names of the people who had sent the company money for various
investments, including the Gulf Coast project, as unsecured creditors and the amounts owed to
them. Appellant had “no objection” to this evidence, and it showed that the list of unsecured
creditors and the amounts of their claims matched the names and amounts in the theft indictment
and totaled well over $200,000.
whose testimony is contained in three volumes of the reporter’s record; the documentary evidence consists of 90 exhibits totaling 1,365 pages.
We are not required to search the record for support of a party’s argument. See TEX. R. APP. P. 38.1(i); Hajjar v. State, 176 S.W.3d 554, 566
(Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).
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Having reviewed the evidence in the appropriate light, we conclude that it is sufficient to
show that appellant appropriated and possessed $200,000 or more. 2 We resolve issue two
against appellant.
ISSUE THREE: CHARGE ERROR
In issue three, appellant complains of charge error. He contends that the trial court
abused its discretion by including in the jury charge an instruction based on article 38.39 of the
code of criminal procedure, which states:
In trials involving an allegation of a continuing scheme of fraud or theft alleged to
have been committed against a large class of victims in an aggregate amount or
value, it need not be proved by direct evidence that each alleged victim did not
consent or did not effectively consent to the transaction in question. It shall be
sufficient if the lack of consent or effective consent to a particular transaction or
transactions is proven by either direct or circumstantial evidence.
TEX. CODE CRIM. PROC. ANN. art. 38.39 (West 2005) (emphasis added). Appellant contends that
article 38.39 relieves the State of its burden to prove lack of consent of the non-testifying victims
and it was error to include an instruction in the jury charge based on this statute. Appellant
argues that article 38.39 “allows the State, by proving as little as a single transaction lacked
effective consent, to take advantage of an implied presumption that each alleged victim in ‘a
large class of victims’ also did not consent or effectively consent to a similar transaction.” He
contends that the statute “relieves the State of meeting its burden of proving each and every
element of an offense beyond a reasonable doubt.”
In reviewing a claim of jury charge error, our first task is to determine whether there is
error in the charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). We conclude
there is not.
2
To the extent the State addresses any other element of the theft and money laundering charges, we do not interpret appellant’s argument
on appeal to complain about the evidence to support those elements.
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Appellant has not cited authority for his argument that article 38.39 contains an “implied
presumption” regarding lack of consent. And the plain language of the statute requires the State
to prove lack of consent of all victims. See TEX. CODE CRIM. PROC. ANN. art. 38.39 (stating lack
of consent may be proved by direct or circumstantial evidence). Although the law at one time
required lack of consent to be proved by direct testimonial evidence of the victim unless that
evidence was not available, since 1974 the law has been that the State may prove lack of consent
by either direct or circumstantial evidence. Taylor v. State, 508 S.W.2d 393, 394–97 (Tex. Crim.
App. 1974); Williams v. State, 591 S.W.2d 873, 875 (Tex. Crim. App. [Panel Op.] 1979); Ashby
v. State, 604 S.W.2d 897, 900 (Tex. Crim. App. [Panel Op.] 1979) (op. on reh’g). In other
words, lack of consent may be proved “by circumstantial evidence the same as any other issue in
a criminal case may be proved by circumstantial evidence.” Taylor, 508 S.W.2d at 397.
Appellant cites the general law regarding proof beyond a reasonable doubt, presumption
of innocence, sufficiency of the evidence, hypothetically correct jury charge, and effective
consent. But he does not explain how article 38.39 eliminated the State’s burden to prove lack of
consent of the non-testifying victims or why circumstantial evidence of those victims’ lack of
consent is constitutionally infirm. We resolve issue three against appellant.
ISSUE FOUR: RESTITUTION
In issue four, appellant argues that “[t]he trial court erred in ordering restitution as a
condition of probation in Appellant’s Securities Fraud and Money Laundering convictions.” He
contends that the trial court abused its discretion by ordering him to pay restitution because (1)
the amount of restitution does not have a factual basis; (2) the restitution amount “does not
comport with the offense”; (3) the order requires him to pay restitution to individuals not named
as victims; and (4) the court did not consider his ability to make payments.
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Appellant concedes that he did not object to the restitution order below, but argues that he
may nevertheless challenge the sufficiency of the evidence to support the restitution order for the
first time on appeal. He cites Moff v. State, 131 S.W.3d 485 (Tex. Crim. App. 2004), to support
his argument. But Moff addressed the sufficiency of the evidence to support a conviction, not a
restitution order, and does not apply here. Id. at 488–89.
Conditions of probation are like a contract between the defendant and the trial court.
Gutierrez-Rodriguez v. State, 444 S.W.3d 21, 23 (Tex. Crim. App. 2014). If the defendant does
not object to the conditions, those conditions are “affirmatively accepted as terms of the
contract[.]” Id. (internal citation omitted). Appellant argues that he requested a hearing on
restitution and did not get one, but he does not cite the record where he requested a hearing. At
the conclusion of the punishment hearing, appellant asked the trial court if he would be “open” to
a hearing on restitution, and the court said, “Of course. Of course.” But there is nothing in the
record to show appellant ever requested a hearing. Instead, the record shows that appellant
signed the conditions of probation without objection. Because appellant did not object below, he
cannot complain on appeal. Id. We resolve issue four against appellant.
ISSUE FIVE: IMPROPER SENTENCES
Issue four states:
Imposing probated sentences in two cases and a ten-year term of confinement in a
third guarantees Appellant will violate the terms of his probation; having done so,
the trial court made a future revocation of Appellant’s probated sentences a
certainty, effectively imposing consecutive terms of confinement, contrary to law.
Appellant argues that because the trial court sentenced him to ten years’ community
supervision in the money laundering and securities fraud cases and ordered those sentences to
run concurrently with the ten-year sentence of incarceration in the theft case, “the practical effect
of . . . the sentences rendered them consecutive[.]” He argues that “the sentences in this case
[sic] make it inevitable that Appellant’s probation will be revoked” because he cannot satisfy the
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conditions of community supervision while imprisoned and will have a shortened period of time
to complete community supervision if he is released on parole before the expiration of the prison
term. He contends that this “virtually certain revocation” and subsequent imprisonment for
violation of community supervision “renders these three sentences consecutive rather than
concurrent[.]”
Appellant cites no authority to support this argument. The code of criminal procedure
states:
If a defendant has been convicted in two or more cases and the court suspends the
imposition of the sentence in one of the cases, the court may not order a sentence
of confinement to commence on the completion of a suspended sentence for an
offense.
TEX. CODE CRIM. PROC. ANN. art. 42.08(c) (West Supp. 2014).
The language of this statute anticipates that a trial court may sentence a defendant to
community supervision in one case and imprisonment in another and precludes a court from
ordering a defendant to serve the community supervision first and then the prison sentence. See
id. Instead, the sentences must be served either consecutively, with the defendant serving the
prison time first, id., or concurrently if the cases were tried together, see TEX. PENAL CODE ANN.
§ 3.03(a) (West Supp. 2014). Appellant has cited no basis for us to conclude that the sentences
assessed by the trial court are “contrary to law,” and we have found none. We resolve issue five
against appellant.
CONCLUSION
We affirm the trial court’s judgments.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
Do Not Publish JUSTICE
TEX. R. APP. P. 47.2(b)
140224F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
WILLIAM PAUL HUDSON, Appellant On Appeal from the 416th Judicial District
Court, Collin County, Texas
No. 05-14-00224-CR V. Trial Court Cause No. 416-82440-2011.
Opinion delivered by Justice Lang-Miers,
THE STATE OF TEXAS, Appellee Justices Francis and Whitehill participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 20th day of March, 2015.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
WILLIAM PAUL HUDSON, Appellant On Appeal from the 416th Judicial District
Court, Collin County, Texas
No. 05-14-00225-CR V. Trial Court Cause No. 416-82442-2011.
Opinion delivered by Justice Lang-Miers,
THE STATE OF TEXAS, Appellee Justices Francis and Whitehill participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 20th day of March, 2015.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
WILLIAM PAUL HUDSON, Appellant On Appeal from the 416th Judicial District
Court, Collin County, Texas
No. 05-14-00226-CR V. Trial Court Cause No. 416-82443-2011.
Opinion delivered by Justice Lang-Miers,
THE STATE OF TEXAS, Appellee Justices Francis and Whitehill participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 20th day of March, 2015.
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