                                  NO. 07-08-0014-CR
                                  NO. 07-08-0015-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                OCTOBER 20, 2009
                         ______________________________

                              MYCAL ANTOINE POOLE,

                                                              Appellant

                                            v.

                               THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

             FROM THE 52ND DISTRICT COURT OF CORYELL COUNTY;

             NOS. 18335 & 18336; HON. PHILLIP ZEIGLER, PRESIDING
                      _______________________________

                                Memorandum Opinion
                        ________________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Mycal Antoine Poole appeals his convictions for three counts of fraudulent filing of

a financing statement and three counts of retaliation. In doing so, he claims 1) the trial

court erred in refusing to quash the indictments and require the State to elect which

charges to proceed on because fraudulent filing of a financing statement and retaliation

are in pari materia, 2) the evidence was legally insufficient to sustain his convictions

because the financing statements were incomplete and invalid on their face, 3) the
evidence was legally insufficient to sustain his convictions because there was no evidence

that the victims suffered harm, and 4) the trial court erred in admitting the testimony of

William Kent regarding an extraneous offense. We disagree and affirm the judgments.

         Background

         Appellant filed two lawsuits in the United States District Court for the Western

District of Texas.         Andrew Austin, as U.S. Magistrate, recommended that both be

dismissed as frivolous, and Judge Sam Sparks accepted the recommendations and

dismissed them. He also sanctioned appellant for abusing the legal system. Thereafter,

Austin and Sparks received notices of UCC (Uniform Commercial Code) statements having

been filed with the Secretary of State’s office and indicating that appellant had liens against

property of the two men. One of the notices alleged that Austin, who was described as a

“transmitting utility,” owed him $37,000,000.1 Another alleged that Sparks (who was also

described as a “transmitting utility”) owed appellant $4,000,000. Both judges later testified

that neither of them was a “transmitting utility” nor had dealings with appellant through

which they owed him money.

         Issue 1 - Failure to Quash Indictments

         Appellant sought to quash the indictments in part or require the State to elect upon

which charges to try him by contending that he could not be tried for both fraudulent filing

of a financing statement and retaliation. Because the trial court refused to do so, it

supposedly erred. We disagree and overrule the point.

         1
           The evidence at trial was that a transm itting utility was a person prim arily engaged in the business
of 1) operating a railroad, subway, street railway or trolley bus, 2) transm itting com m unications electronically,
electrom agnetically, or by light, 3) transm itting goods by pipeline or sewer, or 4) transm itting or producing and
transm itting electricity, steam , gas or water. Notices of liens against transm itting utilities do not autom atically
expire in five years as do other lien notices.

                                                          2
       The doctrine of in pari materia applies when one statute deals with a subject matter

in general terms and another deals with the same subject matter in a more specific way.

When those statutes conflict, the more detailed normally controls. State v. Vasilas, 253

S.W.3d 268, 272 (Tex. Crim. App. 2008), citing 53 TEX .JUR .2D Statutes §186 (1964).

Additionally, the concept applies only if the two statutes have the same purpose or object.

Burke v. State, 28 S.W.3d 545, 547 (Tex. Crim. App. 2000). Such a conflict also may arise

where the violation of one carries a lesser range of punishment than the other. Azeez v.

State, 248 S.W.3d 182, 193 (Tex. Crim. App. 2008). But, the happenstance that an act

may fall within the parameters of both offenses does not necessarily make the statutes in

pari materia. See Cullen v. State, 832 S.W.2d 788, 792 (Tex. App.–Austin 1992, pet. ref’d)

(stating that the fact that both the criminal mischief statute and the statute prohibiting

desecration of venerated objects could conceivably cover the same person and the same

property does require that they be considered in pari materia).

       According to appellant, the subject statutes at bar are in pari materia and, because

the punishments differ, he should have been tried for retaliation only. We disagree.

       In determining whether the two statutes serve a common purpose, we look at such

indicia as whether 1) they are contained in the same legislative act, 2) they have the same

elements, 3) they involve different penalties, and 4) they were clearly written to achieve the

same objective. Burke v. State, 28 S.W.3d at 548.

       Fraudulently filing a financing statement occurs when a person knowingly presents

for filing or causes to be presented for filing a financing statement that the person knows

is groundless or knows that it contains a material, false statement. TEX . PENAL CODE ANN .



                                              3
§37.101(a)(2) & (3) (Vernon 2003). Such an offense is a Class A misdemeanor subject

to becoming a state jail felony if the person committed the offense with the intent to

defraud or harm another. Id. §37.101(b). On the other hand, the offense of retaliation

occurs when a person intentionally or knowingly harms or threatens to harm another by an

unlawful act in retaliation for or on account of the victim’s service or status as a public

servant. Id. §36.06(a)(1) (Vernon Supp. 2008). Normally, the offense constitutes a felony

of the third degree. Id. §36.06(c).

        We initially note that the two provisions were not enacted at the same time. While

that relating to retaliation was enacted in 1973, that pertaining to fraudulent financing

statements became effective in 1997. Of further import is that the elements of each differ,

as do their respective punishments. And, according to comments, it was enacted to protect

people from harassment and intimidation by others. See TEX . BUS. & COM . CODE ANN .

§9.5185 cmt. (Vernon 2002).2 On the other hand, the focus of the retaliation statute

appears to be on the need to curtail attacks against public servants related to their acts as

such servants.

        Based on the foregoing circumstances and differences, we do not find the two

statutes to be in pari materia. See Segura v. State, 100 S.W.3d 652, 656 (Tex. App.–

Dallas 2003, no pet.) (holding that harassment and stalking are not in pari materia because

in stalking the victim’s fear is at issue and harassment is broader, the offenses involve

different penalties, the elements are different, and the legislative enactments weigh against



        2
         Section 9.5185(c) of the Business and Com m erce Code states that a person m ay be prosecuted for
fraudulent filing of a financing statem ent under §37.101 of the Penal Code. T EX . B U S . & C O M . C OD E A N N .
§9.5185(c) (Vernon 2002).

                                                         4
finding otherwise). Therefore, the trial court did not err in refusing to strike portions of the

indictments.

        Issue 2 - Legal Sufficiency of Fraudulent Filing

        In his second issue, appellant challenges the legal sufficiency of the evidence to

show that he filed fraudulent financing statements because those statements were

purportedly invalid on their faces. We overrule the issue.

        Appellant cites us to nothing in §37.101 of the Penal Code that requires the

statements to be valid or appear valid to a “knowledgeable person.”3 Nor did our own

review of the provision disclose the existence of such elements. Rather, the State need

only prove that the accused knowingly filed a financing statement that he knew to be false,

forged, or groundless.

        Issues 3 and 4 - Harm

        In his third and fourth issues, appellant claims the evidence is legally insufficient to

support his convictions because nothing illustrated that either Sparks or Austin suffered

harm. We overrule the issues.

        With regard to the retaliation convictions, both the pertinent statute and jury

instructions described the mens rea requirement as intentionally or knowingly harms “or”

threatens to harm. TEX . PENAL CODE ANN . §36.06(a) (Vernon Supp. 2008). Thus, the jury

did not have to find that either victim was actually harmed. It could have simply found that

appellant intentionally or knowingly threatened to harm them. And, appellant fails to

        3
          Appellant does cite §9.502(a) of the Texas Business and Com m erce Code as support for his
argum ent. However, that statute discloses that a financing statem ent is “sufficient” if it contains the specified
inform ation. T EX . B U S . & C O M . C OD E A N N . §9.502(a) (Vernon 2002). In other words, the docum ent m ust
contain the requisite inform ation to satisfy the criteria for creating a lien. The Penal Code says nothing about
the need for a lien to arise before §37.101 applies.

                                                        5
suggest that the evidence was legally insufficient to prove he so threatened the judges.

So, his present complaint has no effect upon the retaliation convictions.

       As for the fraudulent filing convictions, the record contains evidence illustrating that

Sparks incurred some monetary expense (though minimal) in effort to ameliorate

appellant’s illegal conduct. So too is there evidence that appellant’s conduct also caused

both judges to expend time from work and suffer anguish and irritation. The Penal Code

does not require that the harm contemplated be pecuniary or physical; aggravation and the

loss of time has been held to cause sufficient disadvantage to constitute harm for purposes

of the crimes. Halay v. State, No. 03-07-0327-CR, 2008 Tex. App. LEXIS 9711 at *20-21

(Tex. App. - Austin December 31, 2008, no pet.) (not designated for publication); White v.

State, No. 14-05-0454-CR, 2006 Tex. App. LEXIS 8396 at *6 (Tex. App.–Houston [14th

Dist.] September 28, 2006, pet. ref’d) (not designated for publication).

       Issue 5 - Extraneous Offense

       In his final issue, appellant complains of the trial court’s admission into evidence of

the testimony of William Kent, a convicted felon.           The evidence purportedly was

inadmissible under Texas Rules of Evidence 404(b) and 403. We overrule the issue.

       The testimony in question involved Kent describing how appellant offered to assist

Kent’s girlfriend and her mother to avoid a foreclosure proceeding. The assistance would

come in the nature of transferring the mortgage to Sparks by filing a copyright lien against

that judge. Kent also related how appellant represented that he had done this before as

a means of retaliating against Sparks and Austin because of their rulings against him.




                                              6
       Evidence of an extraneous offense is admissible under Rule 404(b) as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

or accident. TEX . R. EVID . 404(b). The trial court admitted the testimony in question as

evidence of motive or intent. And, given its propensity to illustrate that appellant not only

intended to harm or defraud his victims by filing the statements but also acted in retaliation

against Sparks and Austin for their service as public servants, we conclude that the trial

court did not abuse its discretion in overruling the ground. This is especially so since

appellant previously had denied that he sought to retaliate against Sparks.

       Nor was the decision to overrule appellant’s 403 objection an instance of abused

discretion. This is so because the evidence both illustrated appellant’s motive and

contradicted his testimony suggesting that he was not acting out of retaliation. We further

note that presenting the evidence did not take up an inordinate amount of time, and the

jury was instructed that it could only be considered for purposes of motive and intent.

Consequently, we cannot say that its probative value was substantially outweighed by its

alleged likelihood to unduly prejudice appellant or confuse the jurors.

       In sum, we overrule all of appellant’s issues and affirm the judgments.



                                                  Per Curiam

Do not publish.




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