Leslie R. Collins v. State ( 2014 )

Affirmed and Memorandum Opinion filed May 1, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00449-CR
LESLIE R. COLLINS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause No. 1350783
MEMORANDUM OPINION
Appellant Leslie R. Collins appeals his conviction for misapplication of
fiduciary property. In a single issue he argues the trial court erred in allowing a
State’s witness to testify after the witness remained in the courtroom in violation of
the witness sequestration rule. We affirm.
Background
Appellant entered a plea of guilty to the offense of misapplication of
fiduciary property without an agreed recommendation on punishment. The trial
court ordered preparation of a presentence investigation report, and held a hearing
on sentencing.
According to the offense summary in the PSI, appellant was a licensed
insurance agent who misappropriated funds from individual customers and
financial entities known as premium finance companies. In 2008, appellant was
working with title companies ostensibly to provide insurance to new homeowners.
In these instances the purchasers of new homes were required by the mortgage
company to pay one year’s home insurance premium at closing. Most of the
homeowners paid with a check made out to the title company and delivered at
closing. The title company then issued checks to appellant, and appellant was
expected to forward the funds to the insurance provider and purchase the
insurance. Instead of forwarding the insurance premium, appellant kept the money.
Most of the affected homeowners did not learn they were uninsured until after their
homes were damaged by Hurricane Ike.
While preparing for trial, the District Attorney’s office discovered appellant
committed a similar scheme involving premium finance companies. Premium
finance companies typically provide financing to businesses and individuals who
cannot afford to pay a lump sum annual insurance premium. The investigators
learned that appellant created false clients, both business and personal, submitted
their information to the finance companies, obtained financing, but kept the money
paid by the finance companies.
The presentence investigators received victim impact letters from eight
victims. Two of the victims, Bret Schulte and Roland Seymour, testified during the
punishment hearing. Schulte and Seymour were victims of an investment scheme
perpetrated by appellant, which was separate from the insurance scheme.
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In his victim impact letter, Schulte wrote that he gave appellant and
appellant’s partner $500,000 in a single transaction to invest in real property.
When the transaction failed to close appellant told Schulte he needed another
$70,000. Schulte insisted that appellant keep the money in a trust account and only
use it for the real estate investment. According to Schulte, appellant and his partner
stole the money. They showed him a bank statement showing hundreds of
thousands of dollars in the account, but Schulte later learned there was almost no
money in the account. Schulte obtained real bank statements for the account, and
learned that appellant was withdrawing large amounts of cash from the account to
purchase personal items. Appellant eventually purchased the real estate, but did so
through a holding company, essentially cutting Schulte out of the transaction.
Schulte wrote that he never received any money for his investment. Schulte
obtained a civil judgment against appellant for approximately $8,000,000.
In his victim impact letter, Seymour wrote that in August of 2008, appellant
asked him for a $60,000 loan as an extension payment on a 264-acre tract of land
known as the “La Marque Project.” He said he would repay the $60,000 plus
another $60,000 in two weeks. Within three weeks appellant paid Seymour
$120,000. A week later appellant asked for another $125,000 to pay an insurance
premium to a company named First Nations Insurance Group (FNIG). Seymour
requested a written contract with appellant for return of the money. Seymour never
received a contract or receipts he requested. Seymour became suspicious when he
met several other investors who had paid money directly to FNIG on appellant’s
behalf. When Seymour met with one of the investors he learned that appellant
repaid Seymour’s $120,000 with funds he received from another investor in the La
Marque Project.
After preparation of the PSI, the trial court held a punishment hearing. Prior
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to any testimony, appellant invoked the witness sequestration rule (the “Rule”). See
Tex. R. Evid. 614. The trial court explained to the witnesses that they should
remain outside the courtroom and were not to discuss their testimony amongst
themselves or with anybody else except for the attorneys representing either side.
Schulte testified during the punishment hearing that he first met appellant
through a realtor. He invested $425,000 of his own money plus funds from his
family members, which totaled over $1,000,000. Schulte gave the money to
appellant with the understanding that appellant would purchase real estate in
Galveston County, develop the land, and repay Schulte’s investment. Appellant
continued to ask for more money, but failed to close the real estate deal. Schulte
testified that he has a judgment against appellant for over $8,000,000, but has not
collected. On cross-examination, defense counsel asked Schulte about an
agreement with a company named G.C. Wealth as it related to an apartment
complex that was part of the real estate deal.
Seymour testified immediately after Schulte. Seymour began his testimony
as follows:
Q. All right. At some point in 2008, did you enter into some sort of
financial or investment agreement with Leslie Ray Collins?
A. Yeah. It was on August 4, 2008.
Q. What sort of project did you believe you were investing money in?
A. He told me he needed $60,000 as an extension payment for his
seller, Mr. Bob Greg. He mentioned to me that it was supposed to be
some sort of a mixed-use development, was what it was supposed to
be — a town center, some apartments, some other stuff — and that he
had — it was basically a major project that was going on with the
town of La Marque.
Q. That’s La Marque in Galveston County?
A. Yeah, it was called, quote, the “La Marque Project.” And at the
time the project — the name of the company was L.O.A. Holdings.
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And I was just sitting here, and I heard them mention about G.C.
Wealth, also. At the time when I met him —
Defense counsel immediately objected to Seymour’s testimony as being in
violation of the Rule. The State asked Seymour what he had heard of Schulte’s
testimony. Seymour replied, “I heard Mr. Schulte say that they changed the name
of the company several different times.” The trial court permitted Seymour’s
testimony about his experience with appellant.
Seymour testified that appellant approached him for a $60,000 extension
payment to finance a project with FNIG. As he wrote in his victim impact letter,
Seymour testified that appellant promised to pay him $120,000 in exchange for his
$60,000 investment. Three weeks later, appellant paid Seymour $120,000.
Approximately one month later, appellant asked to borrow $125,000 for a down
payment on the deal with FNIG. Appellant promised to double Seymour’s money,
and promised if Seymour reinvested the $250,000, appellant would, within sixty
days, double that money, for a total return of $750,000. Seymour never got his
$125,000 back, and never discovered where the money went.
Violation of “the Rule”
In his sole issue, appellant contends the trial court erred in allowing
Seymour to testify after he heard a portion of Schulte’s testimony.
Rule of Evidence 614, commonly known as “the Rule,” provides for the
exclusion of witnesses from the courtroom during trial. Tex. R. Evid. 614. The
purpose of Rule 614 is to prevent the testimony of one witness from influencing
the testimony of another. Russell v. State, 155 S.W.3d 176, 179 (Tex. Crim. App.
2005). Once Rule 614 is invoked, witnesses are instructed by the court that they
cannot converse with one another or with any other person about the case, except
by permission from the court. Tex. Code Crim. Proc. art. 36.06; Russell, 155
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S.W.3d at 179. The trial court must exclude witnesses from the courtroom during
the testimony of other witnesses. Tex. R. Evid. 614.
However, if a witness violates this rule, the trial court still has discretion to
allow testimony from the witness. Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim.
App. 1996). On appeal, the trial court’s decision to admit testimony will not be
disturbed absent an abuse of discretion. Id. A violation of the Rule is not, in itself,
cause for reversible error. Webb v. State, 766 S.W.2d 236, 239–40 (Tex. Crim.
App. 1989). The defendant must also show that he was harmed by the violation.
See Archer v. State, 703 S.W.2d 664, 666 (Tex. Crim. App. 1986). Harm is
established by showing that (1) the witness actually conferred with or heard
testimony of other witnesses and (2) the witness’s testimony contradicted the
testimony of a witness from the opposing side or corroborated testimony of a
witness he had conferred with or heard. Id.
In this case, it is clear Seymour violated the Rule because he heard a portion
of Schulte’s testimony. Seymour’s testimony did not contradict or corroborate
Schulte’s testimony. According to their testimony and their victim impact letters,
Seymour and Schulte experienced different fraudulent investment schemes with
appellant. According to Schulte’s testimony, he invested several hundred thousand
dollars of his own money plus his family member’s money and never saw a return
on his investment. Appellant repeatedly asked for more money from Schulte and
when he finally purchased the real estate, did so through a holding company,
essentially ensuring that Schulte would not see a return on his investment. In
contrast, the fraud described in Seymour’s testimony resembled a “Ponzi” scheme
in which appellant repaid Seymour’s initial investment with funds received from
another investor. Nothing in Seymour’s testimony corroborated Schulte’s
testimony or made it more compelling. Seymour’s testimony was almost identical
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to the information he wrote about in the letter contained in the PSI. Seymour only
heard Schulte’s testimony about the names of the false companies used by
appellant. The record does not reflect that the testimony Seymour heard affected
his testimony at the punishment hearing. Accordingly, appellant was not harmed
by Seymour overhearing a portion of Schulte’s testimony. The trial court did not
abuse its discretion in permitting Seymour to testify. We overrule appellant’s sole
issue.
The judgment of the trial court is affirmed.
/s/ Ken Wise
Justice
Panel consists of Justices Boyce, Busby, and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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