Aaron Lamar Livingston AKA Ahron-Aziel Livingston: Bey v. the State of Texas ( 2024 )

Affirmed and Memorandum Opinion filed June 27, 2024
In The
Fourteenth Court of Appeals
NO. 14-22-00824-CR
AARON LAMAR LIVINGSTON AKA AHRON-AZIEL LIVINGSTON:
BEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 506th District Court
Waller County, Texas
Trial Court Cause No. 18-08-16527
MEMORANDUM OPINION
Appellant Aaron Lamar Livingston a/k/a Ahron-Aziel Livingston: Bey was
charged with two crimes, forgery and the fraudulent securing of a document by
execution. See Tex. Penal Code §§ 32.21; 32.46. Both charges went to trial before
the same jury. Appellant was convicted of both charges. In this appeal, appellant
challenges his forgery conviction. Id. at § 32.21. Because we determine that the
trial court’s exclusion of appellant’s forensic document examiner expert witness
was harmless, we overrule appellant’s single issue on appeal and affirm the trial
court’s judgment of conviction.
BACKGROUND
Appellant appeared at the Waller County Clerk’s Office where he was
helped by Deputy Clerk Marlene Arranaga. Arranaga was familiar with appellant
as a result of prior interactions in the course of her duties as a deputy clerk.
According to Arranaga, appellant had previously filed only assumed name
documents for doing business in Waller County. Appellant gave Arranaga a
document purporting to be a general warranty deed. The General Warranty Deed
appellant presented appeared to transfer a real property from Paul and Evonne
Wilburn to Canaan-Ahron-Azriel: Bey, an alias appellant was using at the time.
Since the document appellant presented complied with all filing requirements,
including notarization, Arranaga accepted the document and filed it in the Waller
County Property Records.
Another deputy clerk, Donna Jackson, was also familiar with appellant as a
result of his prior filing of numerous, different, assumed name notices. Jackson
described appellant’s filings as irregular because individuals or companies would
normally use a different name from their own name as the name they were doing
business as. According to Jackson, appellant’s notices always had a name for the
registrant and the same name for the assumed name.
Jackson and other deputy clerks thought it was surprising that appellant
would file a General Warranty Deed. Jackson explained that she had worked in the
Waller County Clerk’s office for four years at the time appellant filed the General
Warranty Deed and she was not aware that appellant had ever previously filed a
deed during that time period. Suspicious, Jackson compared the Wilburns’
signatures on the General Warranty Deed filed by appellant with the Wilburns’
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signatures on the deed already on file for the same real property. Jackson believed
the signatures on the documents did not match. Jackson instead thought the
Wilburns’ signatures on the General Warranty Deed filed by appellant looked more
like the signatures on the assumed name notices appellant had previously filed.
Based on her suspicions, Jackson brought the General Warranty Deed to the
attention of the County Clerk, Debbie Hollan. After reviewing the documents,
Hollan agreed the signatures did not match and contacted law enforcement.
Appellant was eventually charged with two first-degree felonies: Forgery of
a Financial Instrument and Securing the Execution of a Document by Deception.
See Tex. Penal Code §§ 32.21; 32.46. After being admonished by the trial court,
appellant opted to represent himself. The trial court appointed standby counsel.
Walter Anderson, Jr., a former notary, testified first during appellant’s trial.
Anderson testified that he was a longtime acquaintance of appellant having
attended school with him. Anderson testified that appellant asked him to notarize a
document. According to Anderson, appellant did not volunteer the nature of the
document he wanted notarized, nor did Anderson ask. Before notarizing the
document, Anderson asked appellant only if appellant had read and understood it.
Anderson then notarized the document based on appellant’s representation that he
had and did. Anderson testified he did not see a deed that day and he did not know
at the time he notarized the document that it was a deed. Anderson testified that if
he had known it was a deed, he would not have notarized it. Anderson further
testified that, when he notarized the document, appellant’s name was on the page,
not Paul and Evonne Wilburn’s. Regardless, Anderson’s “stamp and signature
ended up on the deed” appellant filed in the Waller County Property Records.
At the time of appellant’s trial, Anderson was no longer a notary because of
his involvement in this episode. Anderson testified that he had to surrender his
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notary license and also had to pay $18,000 restitution to Paul Wilburn. Anderson
was also placed on probation. Testifying truthfully during appellant’s trial was a
requirement of Anderson’s probation.
Beverly Filer, a realtor, also testified during appellant’s trial. Filer testified
the Wilburns hired her to sell their five-acre tract in Waller County. Filer listed the
property at $550,000 and it eventually sold at close to that amount. The appraisal
district appraised the property’s value at $401,890.
Filer indicated the Wilburns had never discussed any earlier attempt to sell
or otherwise transfer the property to appellant. Additionally, Filer had no role in
the filing of the General Warranty Deed at issue in the trial. According to Filer,
the Wilburns first learned about the General Warranty Deed on their property once
there was a contract on the property and the ensuing title search discovered it. The
Wilburns ultimately had to file a lawsuit and obtain a judgment to clear the title.
Filer explained it cost the Wilburns thousands of dollars and took at least six
months to clear the title.
After the State finished its case-in-chief, appellant sought to introduce
testimony from three witnesses. Two, Sherman Waller and Lameikia Livingston,
were proposed fact witnesses while the third, John Weldon, was a forensic
document examiner. Appellant offered Weldon as an expert witness and Weldon
had prepared an expert report on his opinions.
The State lodged several objections to Weldon testifying. The State first
objected that Weldon should not be allowed to testify because he was accredited
through a private board and not by the Texas Forensic Science Commission. In
support of this contention, the State cited Section 651.203(b) of Title 37 of the
Texas Administrative Code which, according to the State, “lays out those
disciplines that are required to be licensed by the commission.” The State next
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objected to Weldon testifying on the basis of Rules 702 and 703 of the Texas Rules
of Evidence. According to the State, Weldon’s analysis was conjectural because
he had incomplete data and as a result, there was a gap between Weldon’s data and
his analysis and ultimate conclusion. The State argued that the gap was the result
of Weldon considering only appellant writing his own name and never comparing
it with appellant “attempting to sign Wilburn’s name.” For the same reasons, the
State objected that Weldon’s proposed testimony was not relevant. Finally, the
State objected that Weldon was not qualified.
At this point, the trial court had appellant call Weldon to the witness stand.
After Weldon offered testimony only on the accreditation subject, the trial court
made its ruling. It stated “as I look at the indictment and the manner and means
that are included in [the forgery case], stating in this to - - with intent to defraud or
harm another, alter or make or complete or execute or authenticate a writing so that
it purported to be the act of Paul Wilburn, Jr. When I look at that, when I reflect
on the testimony of prior witnesses, that while I certainly would not ever include
what Mr. Weldon does as junk science, I don’t find it to be relevant to this case.
And, therefore, Mr. Weldon’s testimony will not be provided in this case.”
Weldon’s report was admitted into the record as an offer of proof as a summary of
what Weldon’s testimony would have been had he been permitted to testify during
appellant’s trial. In his report, Weldon opined that nothing in the Wilburns’
signatures on the General Warranty Deed filed by appellant “can be matched with
anything found in the known exemplars of” appellant.
At the conclusion of the evidence, the jury found appellant guilty of both
charges. The trial proceeded directly to the punishment phase, where, after
evidence and argument, the trial court assessed appellant’s sentence at 35 years
confinement on each charge to be served concurrently.
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ANALYSIS
In a single issue on appeal appellant argues that the trial court abused its
discretion when it excluded appellant’s expert witness from testifying.
I. Standard of Review and Applicable Law
A trial judge’s decision on the admissibility of evidence is reviewed under
an abuse of discretion standard and will not be reversed if it is within the zone of
reasonable disagreement. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App.
2011). The trial court abuses its discretion when it acts without reference to any
guiding rules and principles or acts arbitrarily or unreasonably. Rhomer v. State,
569 S.W.3d 664, 669 (Tex. Crim. App. 2019).
Admission of expert testimony is governed by Texas Rule of Evidence 702.
Morales v. State, 32 S.W.3d 862, 865 (Tex. Crim. App. 2000). Rule 702 provides:
“[i]f scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto
in the form of an opinion or otherwise.” Tex. R. Evid. 702. The proponent of
expert testimony must show by clear and convincing evidence that the proposed
expert testimony is sufficiently relevant and reliable to assist the jury in reaching
accurate results. Tillman, 354 S.W.3d at 435.
When ruling on the admissibility of Weldon’s testimony, the trial court
stated, it “would not ever include what Mr. Weldon does as junk science, [but] I
don’t find it to be relevant.” Only relevance, therefore, is at issue in this appeal.
Only relevant evidence is admissible. Tex. R. Evid. 402. Evidence is
relevant if: (a) it has any tendency to make a fact more or less probable than it
would be without the evidence; and (b) the fact is of consequence in determining
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the action. Tex. R. Evid. 401. Evidence does not need to prove or disprove a
particular fact by itself to be relevant; it is sufficient if the evidence provides a
small nudge toward proving or disproving some fact of consequence. Stewart v.
State, 129 S.W.3d 93, 96 (Tex. Crim. App. 2004).
Error in the admission of evidence normally constitutes non-constitutional
error. Walters v. State, 247 S.W.3d 204, 219 (Tex. Crim. App. 2007); Plouff v.
State, 192 S.W.3d 213, 222 (Tex. App.—Houston [14th Dist.] 2006, no pet.).
Texas Rule of Appellate Procedure 44.2(b) provides that an appellate court must
disregard non-constitutional error that does not affect a defendant’s substantial
rights. Tex. R. App. P. 44.2(b). A substantial right is affected when the error had
a substantial and injurious effect or influence in determining the jury’s verdict.
Plouff, 192 S.W.3d at 222. A criminal conviction should not be overturned for
non-constitutional error if the court, after examining the entire record, has “fair
assurance that the error did not influence the jury, or had but a slight effect.”
Morales, 32 S.W.3d at 867. To determine whether the error adversely affected the
jury’s decision, the appellate court should consider the entire record and factors
such as the character of the alleged error and how it might be considered in
connection with other evidence in the case, whether the State emphasized the error,
and any overwhelming evidence of guilt. Motilla v. State, 78 S.W.3d 352, 355–57
(Tex. Crim. App. 2002); Morales, 32 S.W.3d at 867.
The improper exclusion of evidence may raise a constitutional violation if
the excluded evidence forms such a vital portion of the case that exclusion
effectively precluded the defendant from presenting a defense. Potier v. State, 68
S.W.3d 657, 665 (Tex. Crim. App. 2002). In that situation, the standard found in
Rule 44.2(a) applies. Simpson v. State, 119 S.W.3d 262, 269, n.5 (Tex. Crim. App.
2003). Under that standard, we review the entire record and must reverse the
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judgment unless we determine beyond a reasonable doubt that the error did not
contribute to the conviction or punishment. Tex. R. App. P. 44.2(a); Simpson, 119
S.W3d at 269, n.5.
II. The trial court’s exclusion of appellant’s expert witness was harmless.
Assuming without deciding that the trial court erred when it excluded
Weldon’s proposed expert testimony because it was not relevant, we must
determine whether the exclusion was harmful. Tex. R. App. P. 44.2. Appellant’s
entire harm argument focuses on his contention that he did not sign the Wilburns’
names on the General Warranty Deed that he filed in the Waller County Property
Records. In appellant’s view, he was harmed because Weldon would have opined
that nothing in the Wilburns’ signatures on the General Warranty Deed filed by
appellant could “be matched with anything found in the known exemplars of”
appellant’s writing.
In Cause No. 18-08-16527 appellant was charged with forgery. The
elements of forgery as alleged in the indictment are that (1) appellant, (2) acting
with intent to harm or defraud, (3) altered, made, completed, executed, or
authenticated, (4) a writing purporting to be the act of Paul Wilburn, Jr., who did
not authorize the act. The Penal Code defines “forgery” to include altering,
making, completing, executing, or authenticating “any writing” purporting to be
the act of another who did not authorize the act. See Tex. Penal Code §
32.21(a)(1)(A). The State further alleged that “the writing was a General Warranty
Deed that displayed [a] signature purporting to be that of Paul Wilburn, Jr. that was
not in fact the signature of Paul Wilburn, Jr.” Finally, the State alleged appellant
engaged in the alleged conduct in an attempt to obtain a residential and real
property valued at $300,000 or more. The jury charge tracked the same language.
When the State selects the mode of charging a crime, it must prove the case as
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alleged. See Avery v. State, 359 S.W.3d 230, 237 (Tex. Crim. App. 2012).
However, when alternative theories of committing a single offense are submitted to
the jury disjunctively, it is proper for the jury to convict if the evidence is sufficient
under any of the theories submitted. See Murchison v. State, 93 S.W.3d 239, 258
(Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (citing Kitchens v. State, 823
S.W.2d 256, 258 (Tex. Crim. App. 1991)).
Among the forgery theories the State alleged and submitted to the jury was
appellant committed forgery by executing a writing purporting to be that of Paul
Wilburn, Jr., and Paul Wilburn, Jr. did not authorize the act. The jury charge
defined “execution” as “the carrying out or putting into effect of a plan, order, or
course of action or the putting into effect of a legal instrument or order.” As the
State emphasized during closing argument, the State was not required to prove that
appellant was the person who actually wrote Paul Wilburn, Jr.’s name on the
General Warranty Deed appellant filed with the Waller County Property Records.
Instead, the State had to prove only that appellant knew the General Warranty
Deed had not been authorized by Paul Wilburn, Jr. and he filed it anyway with the
intent to obtain a property valued at $300,000 or more. See Tex. Penal Code §
32.21(a)(1)(A)(i), (b); Ford v. State, No. 03-19-00689-CR, 2021 WL 3376932, at
*8 (Tex. App.—Austin Aug. 4, 2021, no pet.) (mem. op., not designated for
publication) (“Even if he did not concoct the forgery scheme or mark or alter the
check himself, he was still guilty of forgery because he gave the check to the teller
to cash it, the check was not authorized by the purported drawer, and he knew it
was forged. Those actions constitute forgery under the statute.”).
Because the jury could have determined that appellant did not sign Paul
Wilburn, Jr.’s signature on the General Warranty Deed and still concluded that
appellant committed forgery because he knew the General Warranty Deed had not
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been authorized by Paul Wilburn, Jr. and he executed a plan to give the
unauthorized General Warranty Deed legal effect by filing it in the Waller County
Property Records anyway, we hold the exclusion of Weldon’s testimony did not
have a substantial and injurious effect or influence in determining the jury’s
verdict. See Celis v. State, 354 S.W.3d 7, 39 (Tex. App.—Corpus Christi 2011,
affirmed 416 S.W.3d 419) (“Because the letter excluded from evidence had no
probative value on the issue of whether or not appellant was in good standing with
the State Bar of Texas, which was necessary for appellant’s conduct to be lawful,
we have fair assurance that the error, if any, in excluding the letter from evidence
either did not influence the jury or had but a slight effect.”). For the same reasons,
we conclude beyond a reasonable doubt that the exclusion of Weldon’s testimony
did not contribute to appellant’s conviction. See Tex. R. App. P. 44.2(a); Clay v.
State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007) (stating that constitutional
error does not contribute to a conviction if the verdict “would have been the same
absent the error.”). We overrule appellant’s issue on appeal.
CONCLUSION
Having overruled appellant’s issue on appeal, we affirm the trial court’s
judgment of conviction on the forgery charge.
/s/ Jerry Zimmerer
Justice
Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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