                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00451-CR
                             NO. 02-14-00452-CR


TIFFANY LYNN LEWIS                                                 APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
              TRIAL COURT NOS. 1171316R, 1388094R

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                        MEMORANDUM OPINION1

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                               I. INTRODUCTION

      Appellant Tiffany Lynn Lewis appeals from her conviction and sentence for

falsely holding herself out as a lawyer and from the revocation of her community

supervision and resulting sentence for misapplication of fiduciary property,

valued between $20,000 and $100,000. See Act of May 29, 1993, 73rd Leg.,

      1
      See Tex. R. App. P. 47.4.
R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3653 (amended 2015) (current

version at Tex. Penal Code Ann. § 32.45(c)(5)); Tex. Penal Code Ann. § 38.122

(West 2011). In three points, Lewis argues that the evidence is insufficient to

sustain her conviction for falsely holding herself out as a lawyer, that the trial

court abused its discretion by admitting evidence about her disbarment during

punishment, and that the trial court’s stacking of her sentences constitutes cruel

and unusual punishment. We will affirm.

                                  II. BACKGROUND

      From December 1995 to April 2005, Lewis was licensed to practice law in

Texas. During that time, she endorsed a check for $78,082.23 that was made

payable to her client; the check represented funds awarded to her client during a

probate proceeding. Lewis pleaded guilty to misapplication of fiduciary property,

valued between $20,000 and $100,000; the trial court found her guilty, sentenced

her to ten years’ confinement and ordered her to pay $58,256.92 in restitution,

suspended imposition of the sentence, and placed her on ten years’ community

supervision. Lewis was ultimately disbarred as a result of the facts underlying

this conviction for misapplication of fiduciary property.

      After Lewis was disbarred, she did not notify courts of her disbarment but

instead accepted appointments and appeared in court on behalf of clients. One

of Lewis’s clients during the time when Lewis was disbarred was J.M.2 J.M.


      2
       To protect the identity of the victim, we use an alias.


                                          2
needed to hire an attorney to find out whether she could obtain money from a lien

she had on her daughter’s house, which had been foreclosed on without notice to

J.M. She contacted a landman who said that he would have an attorney call her.

In response, J.M. received a call from Lewis. J.M. specifically asked Lewis on

the telephone whether she was an attorney, and Lewis said that she was an

attorney. J.M. asked to set up a meeting at Lewis’s office so that she could give

her the paperwork that she had copied from the courthouse deed records, and

Lewis said that she had an associate with an office in Colleyville.

      When J.M. met with Lewis, Lewis gave J.M. a contract and stated that the

foreclosure had been done improperly, that Lewis would recover money from

J.M.’s lien on the property, and that Lewis would pursue damages for J.M. and

for her grandchildren.3    Both J.M. and Lewis signed the contract with Lewis

signing as “T. Lewis” above the typed out “Lynaire & Associates.”4 When Lewis

said that she needed a $500 retainer fee, J.M. again asked whether Lewis was




      3
       J.M.’s daughter, who had owned the home, had passed away, and J.M.
believed that the house belonged to her youngest grandchild.
      4
        The “Service Agreement” states, among other things, that J.M. retained
Lynaire & Associates (the Firm) to assist her with a real estate/title
search/foreclosure matter; that J.M. agreed to pay a nonrefundable retainer of
$500 “for the Investigating the Title Issue”; that if the Firm assisted J.M. with filing
suit, she agreed to pay a nonrefundable fee of $2,500; and that J.M. had the right
in her sole discretion to terminate The Firm’s representation of her prior to the
conclusion of this matter. The copy of the contract in the record is the copy J.M.
received, which was signed only by Lewis.


                                           3
an attorney, and Lewis said yes. J.M. made her $500 check payable to “Tiffany

Lewis, Attorney at Law.” Lewis negotiated the check.

      Sometime later, J.M. became dissatisfied with Lewis’s representation

because J.M. did not feel that any work was being done. J.M. ran an internet

search on Lewis and discovered that she had been disbarred. J.M. called Lewis

and terminated the contract, stating that she had been misled and that she

wanted her money back. Lewis told J.M. that she had referred the case to in-

house attorney Christopher Lewis, but J.M. testified at trial that she had never

met with or spoken to him. J.M. never received a refund of the $500 retainer.

      After hearing the above evidence, the jury found Lewis guilty of falsely

holding herself out as an attorney. After hearing punishment-phase evidence of

additional instances in which Lewis falsely held herself out as an attorney and

lied about her identity in various transactions, the jury assessed Lewis’s

punishment at ten years’ confinement and a $10,000 fine.            The trial court

sentenced Lewis in accordance with the jury’s recommendation.

      After the trial court dismissed the jury, the trial court held a hearing on the

State’s petition to revoke Lewis’s community supervision in the prior

misapplication-of-fiduciary-property case. The State’s motion to revoke Lewis’s

community supervision in the misapplication-of-fiduciary-property case alleged

five new offenses involving fraud or deception and three other violations of her

community-supervision conditions, including that she was over $15,000 in

arrears on her restitution payments. The trial court found all of the allegations to


                                         4
be true, revoked Lewis’s community supervision, sentenced her to ten years’

confinement, and ordered her to pay $42,638.92 in restitution. The trial court

also granted the “State’s Request For Consecutive Or ‘Stacked Sentence,’”

ordering Lewis’s ten-year sentence for falsely holding herself out as an attorney

to run consecutively with her ten-year sentence for misapplication of fiduciary

property. Lewis then perfected this appeal.

 III. SUFFICIENT EVIDENCE SUPPORTS LEWIS’S CONVICTION FOR FALSELY HOLDING
                          HERSELF OUT AS A LAWYER

      In her first point, Lewis argues that the evidence is factually5 and legally

insufficient to support her conviction for falsely holding herself out as a lawyer.

Specifically, Lewis argues that the State failed to prove that she held herself out

as a lawyer.

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170


      5
        Regarding Lewis’s challenge to the factual sufficiency of the evidence, the
court of criminal appeals has held that the Jackson standard is the “only standard
that a reviewing court should apply in determining whether the evidence is
sufficient to support each element of a criminal offense that the State is required
to prove beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 912
(Tex. Crim. App. 2010). Accordingly, we apply the Jackson standard of review to
Lewis’s sufficiency point and overrule the portion of her first point raising a
factual-sufficiency challenge.


                                         5
(Tex. Crim. App. 2014). This standard gives full play to the responsibility of the

trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.

      A person commits the offense of falsely holding herself out as a lawyer if,

with intent to obtain an economic benefit for herself, the person holds herself out

as a lawyer without currently being licensed to practice law in this state, another

state, or a foreign country and without being in good standing with the State Bar

of Texas and the state bar or licensing authority of any and all other states and

foreign countries where licensed. Tex. Penal Code Ann. § 38.122.

      During the trial, Lewis stipulated that when she met J.M., signed the

contract with J.M., and cashed J.M.’s $500 check made payable to “Tiffany

Lewis, Attorney at Law,” she was not licensed to practice law in Texas or any

other state. J.M.’s testimony showed that she believed Lewis was an attorney

based on her words and her conduct. J.M. twice asked Lewis if she was an

attorney, and Lewis responded affirmatively.       Lewis also gave J.M.       legal

advice—representing that the house legally belonged to J.M.’s grandchild, that

the foreclosure was done incorrectly, that J.M.’s grandchildren should have

received notice of the foreclosure, and that Lewis would go to court to seek

damages on behalf of J.M. and J.M.’s grandchildren.           Lewis obtained an

economic benefit when she negotiated J.M.’s check.




                                        6
      Despite the above evidence, Lewis argues that the State failed to prove

that she held herself out as a lawyer because (1) J.M. was the only witness who

testified to this element of the offense, (2) Lewis’s initial meeting with J.M. was

not recorded, and (3) no witness corroborated J.M.’s testimony.        The record

reflects that throughout cross-examination, J.M. never wavered in her testimony

that Lewis twice told her that she was an attorney, and the defense presented no

controverting evidence.   Because Texas Penal Code section 38.122 has no

requirement that a victim’s testimony be corroborated and because the jury is the

sole judge of the weight and credibility of the evidence, the jury was free to

believe J.M.’s testimony even in the absence of corroboration. See Tex. Penal

Code Ann. § 38.122; Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs,

434 S.W.3d at 170; cf. also Celis v. State, 416 S.W.3d 419, 427–28 (Tex. Crim.

App. 2013) (“[T]he [l]egislature has placed the burden of complying with

conditions imposed for the protection of the public upon those who hold

themselves out as lawyers for profit, rather than placing upon the public the

burden of determining whether an individual is qualified and eligible to provide

legal services.”).

      Viewing the evidence in the light most favorable to the verdict, the jury

could rationally have concluded beyond a reasonable doubt that Lewis intended

to obtain an economic benefit for herself by holding herself out as an attorney to

J.M. while Lewis was not licensed to practice law. See Jackson, 443 U.S. at 319,

99 S. Ct. at 2789 (setting forth standard of review); Rodriguez v. State, 336


                                        7
S.W.3d 294, 298–300 (Tex. App.—San Antonio 2010, pet. ref’d) (holding

evidence sufficient to establish that appellant held herself out as an attorney

because jury believed victim’s testimony that appellant told him she was an

attorney when they first met); see also Brown v. State, 468 S.W.3d 158, 163–64

(Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) (holding evidence sufficient to

support conviction based on victim’s testimony, emails, and lack of any evidence

that appellant had explained he was not victim’s lawyer).       We overrule the

remainder of Lewis’s first point.

    IV. NO ABUSE OF DISCRETION IN ADMITTING PUNISHMENT-PHASE EVIDENCE

      In her third point, Lewis argues that the trial court abused its discretion

during the punishment phase by admitting evidence of the details surrounding

her disbarment. Lewis objected to the admission of State’s Exhibit 1A, which

included documents from the State Bar Grievance Committee, and asserted that

no appropriate witness with knowledge of the documents had been called to

testify and that this evidence was not relevant.

                              A. Standard of Review

      We review the trial court’s decision to admit or exclude evidence under an

abuse-of-discretion standard.       Martinez v. State, 327 S.W.3d 727, 736 (Tex.

Crim. App. 2010), cert. denied, 131 S. Ct. 2966 (2011); De La Paz v. State, 279

S.W.3d 336, 343–44 (Tex. Crim. App. 2009). As long as the trial court’s ruling

falls within the zone of reasonable disagreement, we will affirm the trial court’s




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decision. Martinez, 327 S.W.3d at 736; Moses v. State, 105 S.W.3d 622, 627

(Tex. Crim. App. 2003).

                         B. Business-Records Exception

      Lewis complains that State’s Exhibit 1A—the disbarment documents from

the State Bar of Texas—was admitted despite an absence of witnesses at trial to

sponsor the disbarment documents.

      Rule 803(6) of the Texas Rules of Evidence sets forth an exception to the

hearsay rule.    Tex. R. Evid. 803(6).   Records of regularly-conducted activity,

more commonly known as business records, may be admitted if the records were

made at or near the time of the event, they were recorded by someone with

knowledge, and it was common practice to keep such a record in the course of

regularly-conducted business. Id. This information is established through the

testimony of the custodian of the business record or other qualified witnesses or

by a business-records affidavit that complies with rule 902(10). Tex. R. Evid.

803(6)(D). A party choosing to verify hearsay business records by affidavit must

file the records with the court and notify the opposing party at least fourteen days

prior to trial. Tex. R. Evid. 902(10).

      Here, State’s Exhibit 1A consists of nineteen pages of documents from the

State Bar of Texas related to Lewis’s disbarment.6 A business-records affidavit


      6
       The disbarment documents include the judgment of disbarment signed
and entered on April 12, 2005; an agreed order of referral for rehabilitation
signed on December 23, 2003; an agreed order of referral for rehabilitation
signed on September 25, 2003; an agreed judgment of private reprimand signed

                                         9
by Maureen Ray as custodian of the records of the State Bar of Texas was

attached to State’s Exhibit 1 and states that it pertains to nineteen pages of

documents from the State Bar of Texas. The records and the affidavit were

timely filed prior to trial. Although the business-records affidavit was not admitted

into evidence as part of State’s Exhibit 1A, the timely-filed, proper business-

records affidavit covered the nineteen pages of documents from the State Bar of

Texas that were included in State’s Exhibit 1A. Consequently, the documents in

State’s Exhibit 1A are authenticated by a rule 902(10) business-records affidavit

and required no extrinsic evidence of authenticity in order to be admitted.7 Tex.

R. Evid. 803(6)(D), 902(10); Reyes v. State, 48 S.W.3d 917, 922 (Tex. App.—

Fort Worth 2001, no pet.) (holding medical records admissible under rules 803(6)

and 902(10) based on substantially-compliant, business-records affidavit). We

hold that the trial court did not abuse its discretion by admitting State’s Exhibit

1A, and we overrule this portion of Lewis’s third point.

                                  C. Relevancy

      Lewis further argues that the documents in State’s Exhibit 1A evidencing

her disbarment were not relevant to her punishment because the jury had

already found her guilty of falsely holding herself out as a lawyer.

on September 18, 2002; and agreed findings of fact and conclusions of law
signed on September 18, 2002.
      7
       Although Lewis raises no challenge to the business-records affidavit or to
the length of time it was on file, the business-records affidavit substantially and
procedurally complied with rule 902(10).


                                         10
      Texas Code of Criminal Procedure article 37.07, section 3(a) governs the

type of evidence that is relevant during punishment and provides that

      evidence may be offered by the [S]tate and the defendant as to any
      matter the court deems relevant to sentencing, including but not
      limited to the prior criminal record of the defendant, his general
      reputation, his character, an opinion regarding his character, the
      circumstances of the offense for which he is being tried, and . . . any
      other evidence of an extraneous crime or bad act that is shown
      beyond a reasonable doubt by evidence to have been committed by
      the defendant or for which he could be held criminally responsible,
      regardless of whether he has previously been charged with or finally
      convicted of the crime or act.

Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2015). Evidence is

“relevant to sentencing,” within the meaning of the statute, if the evidence is

“helpful to the jury in determining the appropriate sentence for a particular

defendant in a particular case.” Rodriguez v. State, 203 S.W.3d 837, 842 (Tex.

Crim. App. 2006).

      Here, the disbarment documents were relevant to sentencing because

they provided evidence of other bad acts involving professional misconduct

committed by Lewis against clients other than J.M. and the punishment that she

had received from the State Bar as a result of her professional misconduct. For

instance, Lewis received a private reprimand for her failure to appear at a

hearing and a trial on behalf of a client who was on trial for a traffic violation.

Such evidence demonstrated that the punishment assessed by the State Bar

against Lewis for various acts of professional misconduct from 2003 through

2005 did not deter Lewis from committing additional bad acts and crimes. The



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trial court therefore could have reasonably concluded that such evidence would

be helpful to the jury in determining an appropriate sentence for Lewis in this

case. See id.

         Because the disbarment evidence was relevant to Lewis’s punishment, we

hold that the trial court did not abuse its discretion by admitting State’s Exhibit

1A. See Tex. Code Crim. Proc. Ann. art. 37.07, §3(a)(1); Rodriguez, 203 S.W.3d

at 842; Bitterman v. State, No. 03-06-00386-CR, 2007 WL 2462018, at *3 (Tex.

App.—Austin Aug. 28, 2007, pet. stricken) (mem. op., not designated for

publication) (holding evidence of uncharged crimes relevant at sentencing); cf.

Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999) (holding that

sentences assessed for prior convictions are relevant to the jury’s determination

of the appropriate sentence). We overrule the remainder of Lewis’s third point.

                  V. CONSECUTIVE SENTENCES DO NOT CONSTITUTE
                        CRUEL AND UNUSUAL PUNISHMENT

         In her second point, Lewis argues that the trial court’s imposition of

consecutive ten-year sentences constitutes cruel and unusual punishment and is

prohibited by the Texas constitution and the United States Constitution.8 We will

not disturb a trial court’s punishment decision “absent a showing of abuse of

discretion and harm.” Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App.

1984); see Tex. Code Crim. Proc. Ann. art. 42.08(a) (West Supp. 2015).


         8
         Lewis preserved this issue by specifically raising it in her motion for new
trial.


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Generally, a sentence is not cruel, unusual, or excessive if it falls within the range

of punishment authorized by statute. Id. Even if a sentence falls within the

statutory range for that crime, however, it must be proportional to the crime.

Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 3009 (1983). “Outside the

context of capital punishment, successful challenges to the proportionality of

particular sentences have been exceedingly rare.” Rummel v. Estelle, 445 U.S.

263, 272, 100 S. Ct. 1133, 1138 (1980).

      In addressing an Eighth Amendment disproportionality complaint, we first

compare the gravity of the offense against the severity of the sentence. Moore v.

State, 54 S.W.3d 529, 542 (Tex. App.—Fort Worth 2001, pet. ref’d). Only after a

determination that the sentence is grossly disproportionate to the offense do we

proceed to consider other factors. Moore, 54 S.W.3d at 541.

      Comparing the gravity of the offenses against the severity of her

consecutive sentences,9 we conclude that, given the nature of the offenses and

the punishment ranges,10 as well as Lewis’s past conduct while on probation—


      9
       Although Lewis argues that her two consecutive ten-year sentences were
grossly disproportionate to her crimes, “particularly in light of her substantial
involvement in her daughter’s life, trauma suffered during her life, and maximum
sentences already imposed in both cases,” our comparison of the gravity of the
offenses against the severity of the punishment assessed does not include
consideration of mitigating factors. See, e.g., Harmelin v. Michigan, 501 U.S.
957, 994–95, 111 S. Ct. 2680, 2701 (1991) (disregarding mitigating factors raised
by appellant when conducting Eighth Amendment analysis in which appellant
was sentenced to life in prison without the possibility of parole).
      10
        Here, both of the individual sentences were within their respective
statutory maximums. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01,

                                         13
which included committing additional offenses involving fraud, dishonesty, and

deception and failing to make numerous monthly restitution payments for the

money she spent from her clients’ probate-court settlement—Lewis’s consecutive

sentence    of   twenty     years’   confinement     was     not   unconstitutionally

disproportionate punishment for the offenses for which she was convicted.11

See Moore, 54 S.W.3d at 542–43; see also Stevens v. State, 667 S.W.2d 534,

538 (Tex. Crim. App. 1984) (holding cumulation of sentences did not constitute

cruel and unusual punishment). See generally Carney v. State, 573 S.W.2d 24,

27 (Tex. Crim. App. 1978) (“There is no ‘right’ to a concurrent sentence . . . .”).

Lewis has not shown that the trial court abused its discretion by ordering her

sentences to run consecutively. We overrule Lewis’s second point.




1993 Tex. Gen. Laws 3586, 3653 (amended 2015) (stating that misapplication of
fiduciary property valued at the amount taken by Lewis is a third-degree felony);
Tex. Penal Code Ann. § 38.122(b) (stating that falsely holding oneself out as a
lawyer is a third-degree felony); Tex. Penal Code Ann. § 12.34 (West 2011)
(providing that punishment range for a third-degree felony is imprisonment for a
term of two to ten years and a fine not to exceed $10,000); Barrow v. State, 207
S.W.3d 377, 380–81 (Tex. Crim. App. 2006) (“The [l]egislature has charged the
trial court with the determination of whether to cumulate, and the trial court is free
to make this determination so long as the individual sentences are not elevated
beyond their respective statutory maximums.”).
      11
        Even if we determined a disproportionality did exist between the gravity
of Lewis’s offenses and the punishments assessed, there is no evidence in the
record reflecting sentences imposed for similar offenses on criminals in Texas or
other jurisdictions by which we could address the next two factors in an Eighth
Amendment cruel-and-unusual-punishment analysis. See Solem, 463 U.S. at
292, 103 S. Ct. at 3011.


                                         14
                                VI. CONCLUSION

      Having overruled Lewis’s three points, we affirm the trial court’s judgments.



                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 3, 2015




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