      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-03-00150-CR



                             Christopher Bryan Wallace, Appellant

                                                  v.

                                   The State of Texas, Appellee




 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
        NO. 01-079-K368, HONORABLE BURT CARNES, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury found appellant Christopher Bryan Wallace guilty of theft of $20,000 or more

but less than $100,000 and assessed a five-year prison term and a $10,000 fine. See Tex. Pen. Code

Ann. § 31.03(a), (e)(5) (West Supp. 2004). Appellant contends that the evidence is legally and

factually insufficient to sustain the jury’s verdict; his pretrial motions to quash the indictment and

for a continuance should have been granted; he was denied due process and equal protection because

the prosecutor held office in two separate branches of government; he was not allowed to ask proper

questions during jury selection; the court did not properly instruct the jury regarding accomplice

testimony; and the jury was erroneously permitted to conduct independent scientific tests. We find

no reversible error and affirm the conviction.
                                      Factual Background

               Operations Management International (OMI) is a business engaged in building and

operating municipal water and wastewater systems. Appellant was employed by OMI and also

operated a business named W4E in Georgetown. From July 1998 through March 1999, W4E

submitted dozens of invoices to OMI totaling approximately $37,900, ostensibly for work performed

at wastewater plants operated by OMI under contract with the City of Georgetown. Payment checks

from OMI to W4E were deposited in appellant’s bank account.

               Several witnesses employed by OMI testified that the company would sometimes hire

outside contractors to perform “out-of-scope” work—that is, work not covered by the terms of the

company’s contract with the city. The witnesses all agreed that it was against company policy for

an OMI employee to perform out-of-scope work. It is undisputed that the payments to W4E were

for out-of-scope work. There was also testimony that the work for which W4E billed OMI was not

performed, or was not performed by appellant. Robert Moses, OMI’s chief financial officer and the

named complainant, testified that he did not consent to any payments to appellant other than his

salary and incidental work expenses, and that he also did not consent to any payments to appellant

for work not performed.

               The W4E invoices in question were approved by Daniel Wallace, appellant’s father

and OMI’s project manager in Georgetown. Daniel Wallace testified that he approved the invoices,

a necessary prerequisite for payment, knowing that appellant had not performed the work for which

he was billing OMI. Daniel Wallace also admitted that he and appellant defrauded OMI of




                                                2
additional money by setting up a second dummy company, GEM, which also submitted invoices for

work not performed.

                Appellant admitted receiving payments for out-of-scope work he performed for OMI

under the name W4E. Appellant testified that OMI’s regional business manager, Edward Schwab,

knew that appellant was doing this work and had suggested the arrangement as a way of providing

appellant with extra compensation. To corroborate this claim, appellant introduced in evidence a

plaque from OMI reading, “Presented to Chris Wallace W4E in appreciation for your

implementation of OMI’s programs, innovative ideas and hard work,” and a photograph of Schwab

handing appellant a plaque during an OMI meeting. Schwab testified that he never heard of W4E

until the investigation that led to this prosecution began, and that he did not recognize the plaque or

remember giving it to appellant.

                In his testimony, appellant agreed that he did not perform the work reflected on the

invoices purporting to be from W4E to OMI and introduced in evidence by the State. It was

appellant’s contention that OMI officials substituted false invoices for the true invoices in order to

make it appear that appellant had billed OMI for work not done. Appellant suggested that this was

done in retaliation for appellant having reported OMI’s violations of environmental regulations to

state and federal officials.


                                      Sufficiency of Evidence

                When there is a challenge to the sufficiency of the evidence to sustain a criminal

conviction, the question presented is 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, 324 (1979)

                                                  3
(legal sufficiency); Griffin v. State, 614 S.W.2d 155, 158-59 (Tex. Crim. App. 1981) (legal

sufficiency); Zuniga v. State, No. 539-02, 2004 Tex. Crim. App. LEXIS 668, at *20 (Tex. Crim.

App. Apr. 21, 2004) (factual sufficiency). In a legal sufficiency review, all the evidence is reviewed

in the light most favorable to the verdict; it is assumed that the trier of fact resolved conflicts in the

testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the

verdict. Griffin, 614 S.W.2d at 159 (citing Jackson, 443 U.S. at 318-19). In a factual sufficiency

review, all the evidence is considered equally, including the testimony of defense witnesses and the

existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319, 321 (Tex. App.—Austin 1992,

no pet.). Although due deference still must be accorded the fact finder’s determinations, particularly

those concerning the weight and credibility of the evidence, the reviewing court may disagree with

the result in order to prevent a manifest injustice. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App.

2000). The evidence will be deemed factually insufficient to sustain the conviction if the proof of

guilt is too weak or the contrary evidence is too strong to support a finding of guilt beyond a

reasonable doubt. Zuniga, at *20; see Johnson, 23 S.W.3d at 11.

                Appellant contends the evidence is legally insufficient to sustain his conviction

because the payments to W4E from OMI were approved by OMI’s authorized representative, Daniel

Wallace. This argument ignores Daniel Wallace’s testimony that he knew the work being billed was

not performed. The jury could reasonably infer from Moses’s testimony that Daniel Wallace was

not authorized to approve invoices for work he knew had not been done. Viewed in the light most

favorable to the verdict, the evidence is sufficient to support a finding of guilt beyond a reasonable

doubt. Point of error four is overruled.



                                                    4
                 Appellant’s factual sufficiency challenge is primarily an attack on the credibility of

the State’s witnesses. In particular, he asserts that the various OMI representatives lied when they

testified that they did not know about W4E or appellant’s connection to it. Even if this assertion

were true, the evidence remains that W4E did not perform the work reflected on the invoices, as even

appellant admitted at trial. In effect, appellant asked the jury to believe that all the State’s witnesses

were involved in a conspiracy to frame him for theft in retaliation for his being a whistle-blower.

Viewing the evidence in a neutral fashion, we do not believe that it was manifestly unjust for the jury

to reject appellant’s defensive testimony and to find him guilty beyond a reasonable doubt. Point

of error five is overruled.


                                    Accomplice Witness Instruction

                 At the time of appellant’s trial, Daniel Wallace was under indictment for his

involvement in the scheme to defraud OMI. As the State concedes, Daniel Wallace was an

accomplice witness as a matter of law. See Tex. Code Crim. Proc. Ann. art. 38.14 (West 1979)

(testimony by accomplice must be corroborated).            The trial court did not instruct the jury

accordingly.1 Appellant did not object to the court’s charge on this ground, but now asserts that the


   1
       In its charge, the court instructed the jury:

       You are further instructed that a conviction cannot be had upon the testimony of an
       accomplice, if any, unless corroborated by other evidence tending to connect the defendant
       with the offense committed; and the corroboration is not sufficient if it merely shows the
       commission of the offense. An accomplice means anyone connected as a party to the
       charged offense.

The charge then segued into an instruction on the law of parties. The court did not tell the jury that
Daniel Wallace was an accomplice or admonish them to disregard his testimony unless it was

                                                       5
error was fundamental. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on

reh’g).

               An instruction regarding the proper consideration of accomplice witness testimony

is law applicable to the case, and the failure to give such an instruction is error even in the absence

of a request or objection. Howard v. State, 972 S.W.2d 121, 126 (Tex. App.—Austin 1998, no pet.).

But because he did not object, appellant must show that he was egregiously harmed by the court’s

failure to instruct the jury that Daniel Wallace was an accomplice witness whose testimony had to

be corroborated. Almanza, 686 S.W.2d at 171. In reviewing for egregious harm, we must determine

whether the jury “would have found the corroborating evidence so unconvincing in fact as to render

the State’s overall case for conviction clearly and significantly less persuasive.” Saunders v. State,

817 S.W.2d 688, 692 (Tex. Crim. App. 1991); and see Herron v. State, 86 S.W.3d 621, 632 (Tex.

Crim. App. 2002).

               Daniel Wallace testified that he authorized payment on the invoices submitted by

appellant in the name of W4E even though he knew that appellant did not perform the work. Several

other State witnesses also testified that the work shown on the invoices was not done. Even

appellant, in his own testimony, conceded that he did not do the work reflected on the invoices. We

do not believe that the jury, had it been properly instructed that Daniel Wallace was an accomplice

witness, would have found the corroborating evidence so unconvincing in fact as to render the

State’s overall case for conviction clearly and significantly less persuasive. Finding no egregious

harm, we overrule point of error eight.



corroborated by other evidence.

                                                  6
                                            Jury Experiment

                Appellant’s contention that the jury was permitted to conduct an improper scientific

test concerns defense exhibit six, the photograph showing him receiving a plaque from Edward

Schwab. It was appellant’s argument at trial that the plaque in the photograph was defense exhibit

eight, a plaque bearing an inscription to “Chris Wallace W4E.” This inscription, according to

appellant, demonstrated that OMI, or at least Schwab, knew of appellant’s connection to W4E. In

his closing argument at the guilt stage, the prosecutor argued that exhibit eight was not the plaque

shown in exhibit six. He urged the jury to confirm this by closely examining the photograph.

                After the jury retired to deliberate appellant’s guilt, the State suggested to the court

that a magnifying glass be included in the box of exhibits to be sent to the jury room. Defense

counsel objected that the request was “premature” and a “continuation of the State’s argument.” He

urged that “to give them a magnifying glass . . . before they have asked for it, I think, would be

harmful to the rights of the defendant.” After observing that “[i]t is a document case” and “it’s not

just the photograph,” the court ordered that a magnifying glass be included in the box of exhibits “so

they think it’s just a matter of course.”

                Appellant’s point of error on appeal is that the court “erred by permitting the jury to

engage in independent scientific testing of evidence” by providing a magnifying glass to permit the

jury to “engage[ ] in an enhanced inspection of an exhibit.” Appellant also urges that the use of a

magnifying glass by the jury constitutes the improper receipt of other evidence. See Tex. R. App.

P. 21.3(f) (grounds for new trial). Neither of these contentions comports with his objection below.

See Tex. R. App. P. 33.1(a) (preservation of error). Moreover, there is nothing in the record to show



                                                   7
that the jury actually used the magnifying glass, and thus there is no basis for a finding of harm

arising from the alleged error. Point of error three is overruled.


                                         Motion to Quash

                The indictment in this cause alleged that appellant “acquired or otherwise exercised

control over property, namely, money, without the effective consent of Robert J. Moses, the owner,

and with intent to deprive the owner of the property,” and that “the amounts were obtained pursuant

to one scheme or continuing course of conduct, and the aggregate value of the property obtained was

$200,000 or more.” See Tex. Pen. Code Ann. § 31.09 (West 2003).2 Appellant filed a motion to

quash the indictment on the ground that it did not allege “the particular manner in which the owner’s

effective consent was negatived.” He later filed a second motion to quash complaining that the

indictment “fails to allege any specific checks or invoices which the defendant is accused of

obtaining illegally” and “fails to allege in the aggregation paragraph the time period for which he is

being accused of committing this continuing course or scheme.” In point of error six, appellant

contends these motions should have been granted.

                The court of criminal appeals has held that “in a theft prosecution where the State

relies upon a defendant’s act or omission to negate consent pursuant to § 31.01(4) [now section

31.01(3)], the indictment must allege which of the statutory negatives vitiated consent, or the

indictment will be subject to a timely motion to quash for lack of notice.” Geter v. State, 779

S.W.2d 403, 407 (Tex. Crim. App. 1989); see Tex. Pen. Code Ann. § 31.01(3) (West Supp. 2004)




   2
       Appellant was convicted of the lesser included offense.

                                                  8
(defining “effective consent”). Under Geter, it appears that appellant’s original motion to quash had

merit. But at the pretrial hearing held to consider appellant’s various motions, appellant relied solely

on the second motion to quash and did not seek or obtain a ruling on the original motion. Absent

an adverse ruling on that motion, no error is presented for review. Tex. R. App. P. 33.1(a).

               Even if the issue were preserved, no reversible error is shown. When an indictment

fails to convey some requisite item of notice, reversal is required only if the lack of notice had an

adverse impact on the defendant’s ability to prepare a defense. Geter, 779 S.W.2d 407; Adams v.

State, 707 S.W.2d 900, 903 (Tex. Crim. App. 1986). In his brief to this Court, appellant makes no

effort to demonstrate that the defect in the indictment harmed his defense. The present record

reflects that before appellant was tried in this cause, he was tried and convicted of theft in Lampasas

County. That prosecution was also based on W4E’s submission of false invoices to OMI. Appellant

was represented by the same attorney in both prosecutions. It is obvious from the record that

appellant understood that the State intended to prove that OMI’s consent had been induced by

deception. See Tex. Pen. Code Ann. § 31.01(3)(A).

               Appellant did obtain an adverse ruling on his second motion to quash, in which he

asked that the State be required to specify the checks or invoices on which the prosecution was based

and the time period during which the alleged scheme took place. The motion was properly

overruled. In a prosecution for aggregated theft pursuant to section 31.09, “the indictment must

allege the ‘continuing course of conduct’ element, but there is no pleading requirement that it include

the specific acts of theft that are aggregated.” Kellar v. State, 108 S.W.3d 311, 313 (Tex. Crim. App.

2003). The allegation that the offense occurred “on or about January 1998 through December 1999”



                                                   9
was sufficient, when the indictment is read as a whole, to inform appellant that the State intended

to prove that the scheme or continuing course of conduct took place during those months. See id.

at 312. Point of error six is overruled.


                                            Continuance

               Appellant’s counsel filed a written motion for continuance (his third since the

indictment was filed) on October 30, 2002, five days before the trial was scheduled to begin. In the

motion and at a hearing on November 4, counsel stated that he needed additional time to review the

many documents he had received in response to subpoenas served on OMI. Counsel told the court

that he had received “three banker boxes worth of documentation from OMI” on September 24, but

said that additional material had been received only ten days before the hearing. In response to

questions by the court, it was shown that this new material consisted of a list of documents requested

by the defense that OMI had either previously turned over or had been unable to find.

               The denial of a motion for continuance is reviewed for an abuse of discretion.

Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002). To establish an abuse of discretion,

the defendant must show that he was actually prejudiced by the denial of the motion. Id. In his brief

to this Court, appellant makes the conclusory statement that the denial of the requested continuance

denied him due process, but he does not provide any examples of actual prejudice. In reviewing the

trial record, we find that appellant’s counsel appeared to be familiar with the relevant facts and

documents. We find no indication that appellant’s ability to defend himself was harmed by the

court’s denial of the requested continuance. Because no abuse of discretion is shown, we overrule

point of error seven.

                                                 10
                                 Prosecutor’s Status and Voir Dire

                The lead prosecutor in this cause, Dan Gattis, was on the day trial began the

Republican nominee for representative from the newly created 20th state legislative district. Gattis

had no opponent in the general election, which was held on the second day of trial. In point of error

one, appellant urges that Gattis’s service as both a prosecutor and a member of the legislature

violated the separation of powers and denied him due process and equal protection. See Tex. Const.

art. II, § 1 (“no person . . . being of one of these departments, shall exercise any power properly

attached to either of the others”). In point two, appellant contends the trial court erred during voir

dire by not allowing him to question the jury panel regarding any potential bias arising from Gattis’s

status as elected state representative.

                Appellant did not raise the separation of powers issue in either his written “motion

to preserve defendant’s right to a fair and impartial jury panel” or his argument to the trial court.

Instead, it was appellant’s argument below that “the jury [would] give anything [Gattis] says or does

more credence or value based upon their understanding of his role [as elected representative].” He

also argued that it would be impossible to effectively voir dire the jury panel regarding this potential

bias. Therefore, he asked the trial court to assign another prosecutor to the case.

                Assuming that appellant’s separation of powers argument is properly before us, it is

without merit. In State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 928 (Tex. Crim. App. 1994), the

appointment of two assistant attorneys general to serve as assistant district attorneys in a pending

criminal prosecution was challenged on separation of powers grounds. The court of criminal appeals

held that as long as the elected district attorney retained ultimate supervisory authority over the



                                                  11
prosecution, the prosecution power remained in the judicial branch. Id. If Gattis’s election as state

representative made him a member of the legislative branch even before he took the oath of office

and his term began, a question we do not decide, as assistant district attorney he remained subject

to the supervisory authority of the elected district attorney and his service as prosecutor did not

violate the separation of powers. Because appellant’s due process argument is premised on his

contention that there was a separation of powers violation, it necessarily fails. Appellant makes no

argument in support of his equal protection claim. Point of error one is overruled.

               During voir dire, appellant asked the court for permission to ask the panelists who

they voted for in the primary election for state representative, why they voted for that person,

whether their vote would bias them, and whether they had any specific knowledge of Gattis. The

court sustained the State’s objections to the first two questions. Appellant argues that this denied

him the opportunity to intelligently exercise his challenges. In particular, he urges that the

disallowed questions were pertinent to the question of bias. See Tex. Code Crim. Proc. Ann. art.

35.16(a)(9) (West Supp. 2004).

               The trial court has broad discretion over the jury selection process, and its ruling on

the propriety of a particular question will not be disturbed absent an abuse of that discretion.

Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002). In this cause, the court only prohibited

appellant from asking the panelists who they voted for and why. Contrary to appellant’s assertion,

the court did not prohibit him from asking the panelists whether Gattis’s status as soon-to-be

representative would bias them in favor of the State. Although appellant did not ask such a question,

Gattis did. During his voir dire of the panel, Gattis asked:



                                                 12
       [M]e running for political office, holding political office on down the road starting
       in January, does that matter to you one way or the other? Anybody say, “Well, gee,
       you know, I didn’t vote for you. I don’t like you, you know. And I’m not going to
       be fair to you,” or on the other end say, “Man, you know, I think everything you said
       was fantastic. We need to support you in whatever way we can, and we’re going to
       do it by automatically finding somebody guilty.” Anybody feel that way? Raise your
       hand because that’s important. We want to have a fair trial.


There is no indication that anyone responded affirmatively.

               We are not persuaded that the court abused its discretion by not allowing appellant

to ask the panelists if they voted for Gattis. It was not necessary for appellant to know how the

panelists voted in order for him to effectively inquire into any possible bias they might have based

on Gattis’s successful campaign for state representative. Point of error two is overruled.

               The judgment of conviction is affirmed.




                                              __________________________________________

                                              Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: June 24, 2004

Do Not Publish




                                                13
