












 
 
 
 
 
 
 
 
 
                                                         In
The
                                                Court
of Appeals
                        Sixth
Appellate District of Texas at Texarkana
 
                                                ______________________________
 
                                                             No. 06-11-00135-CR
                                                ______________________________
 
 
        ZAKEE KALEEM ABDULLAH, A/K/A ROBERT WHITE,
Appellant
 
                                                                V.
 
                                     THE STATE OF TEXAS, Appellee
 
 
                                                                                                  

 
 
                                      On Appeal from the 202nd
Judicial District Court
                                                             Bowie County, Texas
                                                       Trial Court
No. 11F0008-202
 
                                                                                                   
 
 
 
                                          Before Morriss, C.J.,
Carter and Moseley, JJ.
                                              Memorandum Opinion by Justice Carter




                                                      MEMORANDUM OPINION
 
            Following a bench
trial, Zakee Kaleem Abdullah, also known as Robert White, was convicted of
theft in an amount of $1,500.00 or more, but less than $20,000.00 and was
sentenced to two years’ imprisonment in state jail.  Abdullah challenges the legal sufficiency of
the evidence supporting his conviction and complains that the trial court erred
in failing to grant his motion to quash the indictment.  We hold that Abdullah’s conviction was
supported by legally sufficient evidence, find that denial of his motion to
quash was harmless, and affirm the judgment of the trial court. 
I.        Abdullah’s
Conviction Was Supported by Legally Sufficient Evidence
 
            A.       Standard
of Review 
 
            In reviewing
the legal sufficiency of the evidence in this bench trial, we review all the
evidence in the light most favorable to the verdict to determine whether any
rational judge could have found the essential elements of the charged offense
of theft beyond a reasonable doubt.  Brooks v. State, 323 S.W.3d 893, 912
(Tex. Crim. App. 2010) (4–1–4 decision) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863
(Tex. App.—Texarkana 2010, pet. ref’d) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)).  Our rigorous legal sufficiency review focuses
on the quality of the evidence presented. 
Brooks, 323 S.W.3d at 917–18
(Cochran, J., concurring).  We examine
legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the
fact-finder “to fairly resolve conflicts in testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts.”  Hooper
v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19).
            B. 
     Factual Background 
            Rosie
L. Duckett sustained an injury at
work, which required surgery.  Duckett
began seeking legal advice for a worker’s compensation claim.  A long-time acquaintance who worked at a law
firm referred her to White, a false name used by Abdullah throughout his
dealings with Duckett.[1]  Duckett believed that Abdullah was an
attorney and requested his legal assistance. 
Duckett paid Abdullah $2,000.00 upon his promise that he would assist
her in filing a worker’s compensation claim and $1,500.00 for his legal
assistance in filing a medical malpractice lawsuit.  A written agreement between Abdullah and
Duckett assured that the money would be returned if the worker’s compensation claim
was unsuccessful.  
            After
the passage of approximately nine months, it became clear to Duckett that her
claims were not being pursued, and she made a demand for the return of her
money.  Abdullah told Duckett that he
would return $1,500.00 of her money on a set date.  That date passed, but the money was not
returned.  Instead, Duckett received a
letter from Abdullah stating that he “was caught comming [sic] through Harris
County with drugs cocaine” and that the money had been confiscated during the drug
bust.  Abdullah informed Duckett that he
was “behind bars again,” and pleaded for her to send him an additional $100.00.  Becoming concerned, Duckett took this letter
to the police station.  Abdullah had not
been arrested.  Instead, Duckett learned
that Abdullah was a convicted felon out on parole during the time he promised
to pursue her claims.  Detective Kim
Weaver testified that Duckett had been scammed. 

            C.       Analysis

 
            Legal
sufficiency of the evidence is measured by the elements of the offense as
defined by a hypothetically correct jury charge.  Malik
v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).  The hypothetically correct jury charge “sets
out the law, is authorized by the indictment, does not unnecessarily increase
the State’s burden of proof or unnecessarily restrict the State’s theories of
liability, and adequately describes the particular offense for which the
defendant was tried.”  Id. 
This standard applies “to all trials, whether to the bench or to the
jury.”  Id.
            The
indictment alleged that Abdullah
 
unlawfully
appropriate[d], by acquiring or otherwise exercising control over property,
to-wit:  U.S. Currency, of the
value of $1,500 or more but less than $20,000, from Rosie Duckett
the owner thereof, without the effective consent of the owner, and with intent
to deprive the owner of the property. 
 
            Under the
general theft statute through which Abdullah was charged, the State had the
burden to establish that (1) Abdullah, (2) with intent to deprive the owner (Duckett)
of property, (3) unlawfully appropriated property, (4) without the effective
consent of the owner.  Tex. Penal Code Ann. § 31.03 (West
Supp. 2011); Baker v. State, 986
S.W.2d 271, 274 (Tex. App.—Texarkana 1998, pet. ref’d).  Appropriate means “to acquire or otherwise
exercise control over property other than real property.”  Tex.
Penal Code Ann. § 31.01(4)(B) (West Supp. 2011).  The Texas Penal Code provides that consent is
ineffective if “induced by deception . . . .” Tex.
Penal Code Ann. § 31.01(3)(A) (West Supp. 2011).  Deception includes “failing to correct a
false impression of law or fact that is likely to affect the judgment of
another in the transaction, that the actor previously created or confirmed by
words or conduct, and that the actor does not now believe to be true.”  Tex.
Penal Code Ann. § 31.01(1)(B) (West Supp. 2011).  
            Abdullah
argues that the evidence was insufficient to demonstrate that the currency was
taken without Duckett’s consent.  He
points to Duckett’s testimony stating she gave Abdullah the money freely and
voluntarily pursuant to the signed agreements in exchange for “preparation of …
worker’s compensation” and “legal assistance.” 
To demonstrate that he completed his end of the bargain, Abdullah cites
to Duckett’s testimony that the worker’s compensation claim “was filed, but I
didn’t get no response on it.”  He had
also sent Duckett’s doctor a settlement agreement, which was rejected. 
            Abdullah was
a convicted felon on parole.  Duckett was
introduced to Abdullah through an acquaintance who worked at a law firm.  She mistakenly believed Abdullah was an
attorney with that law firm and requested his legal assistance.  Abdullah’s written agreement to provide legal
services failed to correct her impression. 
Based upon Abdullah’s misrepresentation as to “who he was and what his
ability was to have helped,” Duckett agreed to hire him.  She testified she had been deceived by
Abdullah.  Further, Abdullah was
prohibited by law from attempting to obtain an economic benefit for himself by
contracting to represent Duckett for actions involving her personal injuries.[2]   We find the evidence legally sufficient to
demonstrate that Duckett’s consent to pay the money was ineffective due to
Abdullah’s deception. 
            Yet, “a
claim of theft made in connection with a contract requires proof of more than
an intent to deprive the owner of property and subsequent appropriation of the
property.”  Baker v. State, 986 S.W.2d 271, 274 (Tex. App.—Texarkana 1998, pet.
ref’d).  Neither the mere failure to
perform a contract nor the mere failure “to return or pay back money after
failing to perform a contract, for the performance of which the money was paid
in advance,” are sufficient to establish guilt of theft.  Phares
v. State, 301 S.W.3d 348, 352 (Tex. App.—Beaumont 2009, pet. ref’d).  When alleging theft in connection with a
contract, the State “must prove the defendant did not perform the contract and
knew he was not entitled to the money, not merely that there is a dispute about
the amount rightfully owed.”  Jacobs v. State, 230 S.W.3d 225, 229 (Tex.
App.—Houston [14th Dist.] 2006, no pet.).
            Abdullah was
to assist in filing a medical malpractice lawsuit.  He was also required to achieve a successful
outcome for Duckett on her worker’s compensation or would face the obligation
to return her money.  There is nothing in
the record indicating that the medical malpractice action was filed, and a
successful outcome with the worker’s compensation claim was not achieved.  Nonetheless, Abdullah did not return Duckett’s
money when asked.  Instead, Abdullah sent
Duckett a letter claiming that the money was confiscated as a result of a drug
bust, when, in fact, Abdullah had not been arrested.  A fact-finder could have determined that Abdullah’s
letter was simply an attempt to avoid returning money which he knew he was not
entitled to.  Thus, the evidence was
legally sufficient for a fact-finder to determine beyond a reasonable doubt
that Abdullah, without effective consent, acquired Duckett’s money with intent
to deprive her of it.  
            Abdullah
argues that theft by deception was not charged in the indictment, and a
conviction based on this theory violated his due process rights.  However, because the State did not allege any
particular statutory manner of commission, the hypothetically correct jury
charge included all alternative methods of commission contained in the theft
statute, including theft by deception.  See Geick v. State, 349 S.W.3d 542, 546
(Tex. Crim. App. 2011); Higginbotham v.
State, No. 06-11-00094-CR, 2011 WL 6187139, at *1 n.1 (Tex. App.—Texarkana
Dec. 14, 2011, no pet. h.).   
            We overrule
Abdullah’s first point of error.
 
II.       Abdullah Was Not Harmed by the Overruling
of His Motion to Quash 
 
            We review de
novo a trial court’s denial of a motion to quash.  Lawrence
v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007).  Abdullah filed a motion to quash the State’s
indictment complaining that he had not received effective notice to prepare his
defense “due to the State’s failure to allege in the indictment the method of
appropriation.”  Abdullah was correct
that the indictment did not allege the manner in which he unlawfully
appropriated Duckett’s property.  As we
stated in Askari v. State, Abdullah’s
motion to quash triggered “the State’s duty to further specify the manner of
the alleged unlawful appropriation.”  129
S.W.3d 160, 166 (Tex. App.—Texarkana 2003, pet. ref’d).  “A defendant has a constitutional right to
sufficient notice so as to enable him or her to prepare a defense.”  Hughen
v. State, 265 S.W.3d 473, 481 (Tex. App.—Texarkana 2008), aff’d, 297 S.W.3d 330 (Tex. Crim. App.
2009).
            However, “this
due-process requirement may be satisfied by means other than language in the
charging instrument.”  Kellar v. State, 108 S.W.3d 311, 313
(Tex. Crim. App. 2003); Hughen, 265
S.W.3d at 481.  “When a motion to quash
is overruled, a defendant suffers no harm unless he did not, in fact, receive
notice of the State’s theory against which he would have to defend.”  Kellar,
108 S.W.3d at 313 (Tex. Crim. App. 2003); see
Askari, 129 S.W.3d at 166–67.
            The record
in this case demonstrated Abdullah’s knowledge that the State would use the
theory of theft by deception.  Months
before trial, Abdullah filed a motion “object[ing] to the first indictment to
prohibit the State from using theories of effective concent [sic] was induced
by deception or coercion.”  He also filed
a motion reciting that he was charged with “holding one self [sic] out as a
lawyer” in another court, and arguing that this charge “should have been
included in the original indictment of theft of property; because they are
involving the same act.”  Because
Abdullah was aware that he would be defending the theory of theft by deception
through his impersonation of an attorney, we find that the failure to allege the
manner of illegal appropriation had no detrimental impact on his ability to
present a defense.  See Askari, 129 S.W.3d at 167. 
            We overrule
Abdullah’s last point of error. 
 
III.      Conclusion 
 
            We affirm the trial court’s
judgment. 
 
 
 
                                                                                    Jack
Carter
                                                                                    Justice
 
Date Submitted:          January
30, 2012         
Date Decided:             January
31, 2012
 
Do Not Publish           
 
 
 
 




[1]While
Duckett only knew Abdullah as Robert White, we refer to Abdullah’s real name in
the remainder of this opinion. 


[2]A
person not licensed to practice law commits the crime of unauthorized practice
of law if, with intent to obtain an economic benefit, they contract with any
person to represent that person with regard to personal causes of action for
personal injury or advise any person as to the person’s rights and the
advisability of making claims for personal injuries.  Tex.
Penal Code Ann. § 38.123 (West 2011).



h;
mso-pagination:widow-orphan'>A default judgment should be set aside and a new
trial ordered in any case in which the failure of the defendant to answer
before judgment was not intentional, or the result of conscious indifference on
his part, but was due to a mistake or an accident; provided the motion for a
new trial sets up a meritorious defense and is filed at a time when the
granting thereof will occasion no delay or otherwise work an injury to the
plaintiff.  
 
Craddock v Sunshine Bus Lines,
Inc., 133 S.W.2d 124, 126 (Tex. Com. App. 1939).
            The
issue is whether Haines’ presence on the scheduled August 10, 2010, hearing
date amounted to an “appearance” which entitled her to notice of the final
hearing in the matter.  Whether a party has
“appeared” depends on the nature and quality of the party’s activities in the
case.  See In re Marriage of Runberg, 159 S.W.3d 194, 198 (Tex.
App.—Amarillo 2005, no pet.); Serna v.
Webster, 908 S.W.2d 487, 492 (Tex. App.—San Antonio 1995, no writ) (citting
Smith v. Amarillo Hosp. Dist., 672
S.W.2d 615, 617 (Tex. App.—Amarillo 1984, no writ)).  The nature and quality of activities to be
considered encompass the filing of written documents, see LBL Oil Co. v. Int’l Power Servs., Inc., 777 S.W.2d 390 (Tex. 1989)
(per curiam), and personal activity.  See Bradford v. Bradford, 971 S.W.2d 595,
598 (Tex. App.––Dallas 1998, no pet.); Smith,
672 S.W.2d at 617.  “[A] party who
examines witnesses or offers testimony has made an appearance for all
purposes.”  Bradford, 971 S.W.2d at 598.  A party agreeing to temporary orders and
announcing “ready” has made an appearance. 
Runberg, 159 S.W.3d at 198.  “On the other hand, a party who is a ‘silent
figurehead in the courtroom, observing the proceedings without participating,’
has not.”  Bradford, 971 S.W.2d at 598 (quoting Smith, 672 S.W.2d at 617).
            There
was no sworn testimony taken at the August 10 setting, but there were
statements made to the trial court.  It
is apparent from the record that Haines conferred with the Blacks’ counsel; the
record reflects that the Blacks’ counsel told the trial court that Haines
“doesn’t wish to relinquish custody or grant full access and that sort of thing
at this point in time.”  Haines then
explained to the court that she had been approved for free legal assistance and
had scheduled an appointment to meet with her legal aid attorney the day
following the scheduled hearing.  Haines
asked the trial court for (and was granted) a continuance of the hearing, which
was rescheduled for two days later. 
            While
Haines neither announced “ready” nor examined a witness at the original time
set for hearing of the temporary orders, her denial of the Blacks’ requested
relief was explained on the record, and she directly participated in the
hearing by answering the trial court’s questions, seeking a continuance, and
explaining why a continuance was needed. 
We find that her actions amount to participation in the hearing;
therefore, her presence at and her conduct at the hearing amounts to an
“appearance,” although she filed no written response.  Once a party has made an appearance in a
cause, he is entitled to notice of the trial setting as a matter of due process
under the Fourteenth Amendment to the Federal Constitution.  LBL Oil
Co., 777 S.W.2d at 390–91; see also
Tex. R. Civ. P. 245
            Although
she was entitled to notice of the setting of the final hearing, Haines received
no actual or constructive notice of it; as a result, she has met the first
prong of the Craddock test.  See
Craddock, 133 S.W.2d at 126.  If a
defendant did not receive actual or constructive notice of trial, due process
prevents the application of the second and third prongs of the Craddock test.  See
Runberg, 159 S.W.3d at 199–200 (citing
Lopez v. Lopez, 757 S.W.2d 721,
723 (Tex. 1988); Peralta v. Heights Med.
Ctr., Inc., 485 U.S. 80 (1988)).  Because we find that Haines made an
appearance, due process entitled her to notice of the final hearing.  See LBL
Oil Co., 777 S.W.2d at 390–91; see
also Coastal Banc SSB v. Helle, 48 S.W.3d 796, 798, 801 (Tex. App.—Corpus
Christi 2001, pet. denied) (reversing default judgment against defendant who
appeared at temporary injunction hearing but not given notice of default
judgment hearing).  
            Accordingly,
we reverse the trial court’s final order, set aside the default judgment, and remand
to the trial court for a new trial.  
 
 
                                                                        Bailey
C. Moseley
                                                                        Justice
 
Date Submitted:          May
11, 2011
Date Decided:             May
27, 2011
 



[1]Geraldine,
Jimmy, and Angela are collectively referred to herein as “the Blacks.”
 


[2]N.L.D.’s
father, Robert Lee Dobbins, was incarcerated at the time the petition was
filed. After receiving service, he filed a written answer, consenting to the
Blacks’ petition.  The final order
appointed him as possessory conservator.


[3]In
her motion to set aside the default judgment, she alleged that while driving to
the hearing, her car broke down and when she called the court to inform them of
her situation, she was told that the hearing would be reset.  


[4]At
trial, Haines failed to raise the issue of standing, however, standing, as a
necessary component of a court’s subject-matter jurisdiction, cannot be conferred
by consent or waiver, and may be raised for the first time on appeal.  Tex.
Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993).  


[5]There
is no pleading or evidence that the Blacks have standing under the general
standing provisions of Section 102.003 of the Texas Family Code.


