IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS

Transcription

1 IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS WILLIAM LESTER SEEYLE, APPELLANT No CR THE STATE OF TEXAS, APPELLEE APPEALED FROM CAUSE NUMBER IN THE 219 TH JUDICIAL DISTRICT COURT OF COLLIN COUNTY, TEXAS, THE HONORABLE CURT B. HENDERSON, DISTRICT JUDGE, PRESIDING. STATE S BRIEF JOHN R. ROACH Criminal District Attorney Collin County, Texas Oral argument is requested, but only if Appellant is also requesting argument. JOHN R. ROLATER, JR. Assistant Criminal District Attorney Chief of the Appellate Division JEFFREY GARON Assistant Criminal District Attorney 2100 Bloomdale Road, Suite McKinney, Texas State Bar No (972) FAX (972) DALE BARRON & GRETA L. CANTWELL Special Prosecutors CHRISTOPHER MILNER & KELLY CROWSON Assistant Criminal District Attorneys

2 TABLE OF CONTENTS TABLE OF CONTENTS... i INDEX OF AUTHORITIES...ii STATEMENT OF THE CASE... 1 STATEMENT OF FACTS... 1 SUMMARY OF THE STATE S ARGUMENT... 4 The record in this case does not demonstrate either that Appellant s counsel performed deficiently or that but for counsel s performance the result differed. Consequently, Appellant s claim cannot be sustained on direct appeal. STATE S REPLY TO APPELLANT S SOLE POINT OF ERROR (EFFICACY OF COUNSEL)... 5 Standard of Review... 5 Argument and Authorities... 6 The Seel-Mac receivership... 7 The Railroad Commission proceedings... 9 Exclusion of the State s exhibits would not have caused a different result Appellant has not met his burden CONCLUSION AND PRAYER CERTIFICATE OF SERVICE i

3 INDEX OF AUTHORITIES Statutes, Codes, and Rules TEX. R. EVID. 404(b)...10 TEX. R. EVID. 801(d)...8 Cases Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002)...6 Brink v. State, 78 S.W.3d 478 (Tex. App. Houston [14 th Dist.] 2001, pet. ref d)...12 Castaldo v. State, 78 S.W.3d 345 (Tex. Crim. App. 2002)...10 Delrio v. State, 840 S.W.2d 443 (Tex. Crim. App. 1992)...5 Ex parte Chandler, 182 S.W.3d 350 (Tex. Crim. App. 2005)...10 Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986)...5 Jackson v. State, 877 S.W.2d 768 (Tex. Crim. App. 1994)...5 Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998)...5 Mallett v. State, 63 S.W.3d 59 (Tex. Crim. App. 2001)...6 Miniel v. State, 831 S.W.2d 310 (Tex. Crim. App. 1992)...6, 10 ii

4 Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990)...10 Ortiz v. State, 93 S.W.3d 79 (Tex. Crim. App. 2002)...6 Strickland v. Washington, 466 U.S. 668 (1984)...5, 11 Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999)...5 Thrift v. State, 176 S.W.3d 221 (Tex. Crim. App. 2005)...12 Valle v. State, 109 S.W.3d 500 (Tex. Crim. App. 2003)...11 Weeks v. State, 894 S.W.2d 390 (Tex. App. - Dallas 1994, no pet.)...6 iii

5 IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS WILLIAM LESTER SEEYLE, APPELLANT No CR THE STATE OF TEXAS, APPELLEE APPEALED FROM CAUSE NUMBER IN THE 219 TH JUDICIAL DISTRICT COURT OF COLLIN COUNTY, TEXAS, THE HONORABLE CURT B. HENDERSON, DISTRICT JUDGE, PRESIDING. TO THE HONORABLE COURT OF APPEALS: STATEMENT OF THE CASE William Lester Seeyle ( Appellant ) pleaded not guilty to an indictment alleging the offense of theft of property valued at more than $200,000. CR 4-6; 3 RR A jury found him guilty. 6 RR 59. The jury assessed his punishment at ninety-nine years in prison and a fine of $10, RR 20. STATEMENT OF FACTS With his experience in drilling and operating oil wells, Appellant sought investors to reopen previously capped wells. 3 RR 53-56, , 259, 267; 4 RR 9, 157, ; 5 RR 30, 51. The profits would be immense and realized very quickly. 3 RR 50-51, 158, , 219, 241; 4 RR 10, 19-20, 31-32, 91, 223, ; 5 RR 34. Appellant aggressively recruited additional investors, using students to make cold calls in exchange for a portion of the profits, and establishing a friends and family plan to allow individuals to pool resources of smaller amounts. 3 RR 53, , 233; 4 RR 32-38, 1

6 41, 57-60, , He promoted his operation with a prospectus documenting the expected profitability, and Appellant s assurances secured the confidence of experienced and novice investors alike. 3 RR 54, 163, 170, 239, , 271; 4 RR 64, 223, 235, 250, ; 5 RR 11, 18, 30-32, 52. Appellant collected money to fund the investments from August 2004 to early RR 50; 5 RR 25-26, 59. What Appellant never told the investors, however, was significant. He did not tell them his companies did not have full ownership of leases on the wells. 3 RR 133, , 164, 179, 194; 4 RR 109, He did not disclose his mismanagement of a prior company that led its placement into a receivership, or he represented the difficulties as due only to an issue caused by embezzlement from a former employee. 3 RR 56, 83-88; 4 RR 57, , ; 5 RR 24, 33, 51. He did not disclose the numerous operator violations, his failure to attempt to rectify them, or the loss of his operator s license by default judgment in RR Finally, Appellant never announced his intention to use the funds for his own personal expenses unrelated to oil production. 3 RR 63, 109, 164, 183, 195, , , 248, 270; 4 RR 18, 98, 115, 147, 162. As suspicions among the investors mounted, Appellant became very difficult to contact and when confronted, he provided excuses for not initiating production or realizing any profit. 3 RR 78-82, 89, , 242, ; 4 RR 17-19, 68, 99; 5 RR 16-21, 41-46, 60, 62. Often Appellant accompanied his explanations with requests for additional funding to expand the interests or to make repairs, or he would just write checks without sufficient funds in the bank to cover the amount 3 RR 67-69, 91-93, , , 196, , 241, 249; 4 RR 21-22, ; 5 RR 21. Appellant never 2

7 actually began drilling, the wells never produced anything other than a minimal amount, and Appellant spent the investors money on personal expenses unrelated to the oil production business. 3 RR 130; 5 RR Ultimately, none of the investors received the sizable profits promised, and most never received a return of any portion of their initial expenditure at all. 3 RR 183; 4 RR 19, 22, 73, 127, 157, 199, 260, 282; 5 RR 23, 45, Appellant s wife, a co-conspirator, later admitted to the theft, deception, and misappropriation, as well as her participation in the scheme with Appellant. 5 RR ; State s Exhibit No

8 SUMMARY OF THE STATE S ARGUMENT State s Reply to Appellant s Sole Point of Error: The record in this case does not demonstrate either that Appellant s counsel performed deficiently or that but for counsel s performance the result differed. Consequently, Appellant s claim cannot be sustained on direct appeal. 4

9 STATE S REPLY TO APPELLANT S SOLE POINT OF ERROR: (EFFICACY OF COUNSEL) Appellant claims that he received ineffective assistance of counsel because his attorney did not make the proper objections to exhibits the State offered as evidence. Because the record does not preclude reasonable trial strategies in support of trial counsel s decisions and no harm is evident, Appellant s claim cannot be sustained. Standard of Review An appellate court evaluates an ineffective assistance of counsel claim under the two-part test of Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). The reviewing court must determine whether counsel s performance fell below an objective standard of reasonableness under prevailing professional norms, and it should assess whether there is a reasonable probability that, but for any deficient performance, the result of the proceedings would have been different. Strickland, 466 U.S. at The burden to prove both harm and deficiency, which must be established by a preponderance of the evidence, lies upon the claimant. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998); see also Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (holding that allegations of ineffectiveness must be firmly founded in the record). Appellate review of an attorney s performance also includes a strong presumption the attorney s actions fell within the wide range of reasonable professional assistance that was formulated as sound trial strategy. Strickland, 466 U.S. at 689; Jackson v. State, 877 S.W.2d 768, (Tex. Crim. App. 1994); Delrio v. State, 840 S.W.2d 443, 447 (Tex. 5

10 Crim. App. 1992). The decisions and strategies of the trial attorney cannot be viewed through the clearer vision of hindsight but only in light of the information available at the time. See Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992); Weeks v. State, 894 S.W.2d 390, 391 (Tex. App. Dallas 1994, no pet.). In fact, without record evidence supplying the reasoning behind a trial attorney s actions, an appellate court cannot conclude that counsel s performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Mallett v. State, 63 S.W.3d 59, (Tex. Crim. App. 2001). Argument and Authorities The record in this case provides no information to allow this Court to fairly determine that counsel was ineffective. With no evidence of trial counsel s reasons for not lodging the objections that Appellant suggests, finding ineffective assistance would require presuming counsel s deficiency, inapposite with the presumption that counsel performed reasonably. See Ortiz v. State, 93 S.W.3d 79, (Tex. Crim. App. 2002) (holding that without a record containing trial counsel s reasons for not objecting, the possibility that the conduct could have been legitimate trial strategy must be presumed). Similarly, no evidence beyond Appellant s speculation establishes that trial counsel s performance caused the jury to convict his client. Out of days of testimony and dozens of exhibits, Appellant isolates two instances in which he faults his trial attorney for not raising the objections he now believes would have been more successful. One instance is trial counsel s failure to include a hearsay objection with his objection to the relevance and prejudicial impact of exhibits 6

11 documenting the events leading to Appellant s former company being placed into a receivership. The other is stipulating to the admission of evidence of the numerous administrative violations of the investment wells that ultimately lead to the revocation of Appellant s operator s license rather than objecting to their prejudicial effect. In either instance, a myriad of sound strategic reasons could have supported trial counsel s actions, thereby preventing Appellant from establishing deficient performance. The Seel-Mac receivership Before Appellant even began seeking funding for his own investment company, his former company, Seel-Mac Oil & Gas, had to seek action to prevent him from misappropriating company funds for his own personal uses. See State s Exhibit Nos When seeking funding for his new investments, Appellant either failed to mention the lawsuit to potential investors or he misrepresented the reason for the injunction and receivership as relating only to an issue caused by embezzlement from a former employee. 3 RR 56, 83-88; 4 RR 57, , ; 5 RR 24, 33, 51. Those misrepresentations and false impressions were part of the deception alleged that prevented the investors from effectively consenting to the use of their money. See CR 6. Before trial began, Appellant unsuccessfully objected to the prejudice that reference to Seel-Mac s placement into receivership could cause. 3 RR 20. He renewed his objections to the relevance and prejudicial impact of the evidence when the State offered the petitions and orders related to that lawsuit during the testimony of Lewis Jue. 3 RR He did not further object to admission of the pleadings on the basis of hearsay. 3 RR 83; State s Exhibit Nos. 33, 35. 7

12 Reasons for not opting to object to hearsay content of the petitions other than trial counsel s incompetence are immediately apparent. Counsel may have understood that that the allegations in the pleadings were not offered for their truth. See TEX. R. EVID. 801(d). Appellant s deception included failing to mention or affirmatively lying about the reasons for Seel-Mac being placed into receivership when obtaining new investment funds. The exhibits established that at Appellant knew his integrity in maintaining his fiduciary duties had been questioned. Their purpose related to Appellant s failure to convey the existence of the lawsuit, the allegations involved, or their resolution without regard to the truth of the allegations. See, e.g., 3 RR (testimony that the information would have impacted the decision to invest). Trial counsel also could have reasonably determined that a successful hearsay objection would cause more damage to Appellant s case than benefit. While the objections counsel did make would have excluded much of the content of the petitions, hearsay is easily rectified. The State s witness list included Dawn Schwalen, a person with personal knowledge of Appellant s fiduciary breaches in Seel-Mac. CR 8. Trial counsel may have greatly preferred that if the information were to be introduced at all, it be contained in one of numerous exhibits than to have live witnesses called. Such a decision would hardly qualify as an unreasonable trial strategy, as would many of countless other reasons, which cannot be ascertained without a record of trial counsel s reasoning. 8

13 The Railroad Commission proceedings While purporting to uncap sealed wells and reinitiate oil production, Appellant actually neglected them. As the operator of the wells, Appellant bore the responsibility to report the amount of their production and ensure that they remained in proper working order. 4 RR 318, 326. The Texas Railroad Commission regulates oil well operations, overseeing compliance with administrative regulations, concerning issues such as safety, the amount of pollution, and production figures. 4 RR The wells that Appellant operated had consistently produced very minimal, if any, barrels of oil for the previous eight years. 4 RR The leases Appellant operated contained wells with dozens of regulatory violations, ranging from improper signage to failing to perform necessary safety tests. 4 RR ; State s Exhibit Nos Although Appellant continued to recruit investors, violations accrued without any evidence of Appellant taking effort to rectify them, thereby leading to administrative enforcement action by the Railroad Commission. State s Exhibit Nos , Ultimately, the continued violations led to a hearing requiring Appellant to show cause why his operator s license should not be revoked. 4 RR 332; State s Exhibit No Appellant made no appearance at that hearing, and on June 6, 2006, the State of Texas revoked his operator s license. 4 RR Nonetheless, Appellant continued to sell investment interests, and in fact, the thefts alleged to be committed against approximately half of the victims listed in the indictment occurred after that time. CR

14 Again, strategic reasons for not opting to object to the exhibits apparent other than trial counsel s incompetence are apparent from the record. In fact, as counsel reviewed all of the Railroad Commission records and stipulated to their admission before trial, a strategic reason must be presumed. CR 45, 65-67, 110, (notice); 2 RR 46 (stipulation). Appellant s misunderstanding of the relevance of the evidence and its purpose for admission renders his argument that a sustainable objection existed dubious even in hindsight. See Miniel v. State, 831 S.W.2d at 323; see also Ex parte Chandler, 182 S.W.3d 350, 356 (Tex. Crim. App. 2005) (noting that an attorney is not deficient for failing to perform an act with little likelihood of success). Although Appellant claims that the exhibits had nothing to do with the charge and consisted only of inadmissible evidence of character conformity, the record reveals admissible purposes for their admission. See Appellant s Brief at 14, 21. For instance, Appellant s complete neglect of performing safety measures, reporting production figures, or rectifying the numerous violations directly related to his intent to deceive, knowledge that his assurances of profitability were false, and to establish the overall neglect was not an isolated mistake. See TEX. R. EVID. 404(b); Montgomery v. State, 810 S.W.2d 372, (Tex. Crim. App. 1990); see also Castaldo v. State, 78 S.W.3d 345, (Tex. Crim. App. 2002) (noting that the context in which an offense was committed may also be relevant evidence not offered to prove character conformity). Appellant repeatedly made misrepresentations of the status of the wells and promised performance that he never intended to complete as he continued to secure more investors, 10

15 and trial counsel s understanding of the likely futility of objecting to the evidence is just one valid reason for not objecting to the introduction of the exhibits. Exclusion of the State s exhibits would not have caused a different result Even were this Court able to consider trial counsel s failure to object to the admission of the State s exhibits to be deficient, Appellant cannot establish the evidence impacted the verdict. The State presented witness after witness who detailed Appellant s promises of a sound investment in his business, including written contracts and documentation. 3 RR 54, 163, 170, 239, , 271; 4 RR 64, 223, 235, 250, ; 5 RR 11, 18, 30-32, 52. Even without detailing his prior mismanagement of a company or without evidence of his abandonment of maintenance of the wells, proof of Appellant s unlawful appropriation was overwhelming. See Strickland, 466 U.S. at 696 (noting that a verdict with strong support from the record is more likely to be unaffected by errors than a weaker case). As discussed above, any hearsay objection to the content of State s Exhibit Nos. 33 and 35 could be rectified with a different sponsoring witness, so objections would not have fully foreclosed admission of the same evidence. See supra at 8. Further, even without the details contained in the petitions, State s Exhibit Nos 34, 36, 37, and 38 which Appellant does not challenge provided the same information of significance to the charges: that Appellant never disclosed previous actions against him that would impact an investor s decision to invest. See Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (holding error in the admission of evidence is cured where the same evidence is admitted elsewhere without objection). Similarly, Appellant s non- 11

16 compliance with regulatory provisions constituted just one small portion of his deception and misrepresentations, such as a bogus prospectus, lies about the reason he dispersed no profit, and his use of investment money for his own personal expenses. Even trial counsel s successful exclusion of all the evidence Appellant finds objectionable would not have prevented him from conviction. Appellant s speculation that the jury convicted Appellant due to the volume of pages contained in the exhibits defies reason, and his reasonable deductions are unsupported by any authority. See Appellant s Brief at He asks this Court to presume the jury entirely disregarded its duties, including the trial court s instruction to consider any extraneous bad acts only for purposes other than assessing Appellant s guilt. CR 185; see Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005) (presuming juries follow the instructions of a trial court). And Appellant s argument that administrative violations have nothing to do with the offense of theft, if accurate, indicates that their admission would not lead the jury to correlate them with the indicted charge. Finally, the existence of harm from counsel s lack of objections has no reasonable likelihood. The evidence at Appellant s trial established an organized and systematic scheme encompassing many years. Without having recounted all of the evidence, including the promises, representations, and other means Appellant used to fraudulently induce over twenty people to entrust significant amounts of money to him, Appellant has presented little for review. See Brink v. State, 78 S.W.3d 478, 488 (Tex. App. Houston [14 th Dist.] 2001, pet. ref d) (reiterating that an appellant must develop all of the facts and 12

17 details necessary to show the outcome of the proceeding would have differed). In light of the entire trial, it is difficult to fathom any result other than conviction notwithstanding trial counsel s lack of objections. Appellant has not met his burden In all, Appellant has neither demonstrated that his attorney was deficient nor has he proffered any likelihood of harm. Appellant does not even attempt to overcome his heightened burden to establish deficiency in the face of a record silent of trial counsel s strategies. Appellant s fails to establish a plausible theory of harm in light of the entire record. Under such circumstances, Appellant s sole point of error should be overruled. 13

18 CONCLUSION AND PRAYER Appellant s trial was without prejudicial error. The State prays that Appellant s conviction and sentence be affirmed. Respectfully submitted, JOHN R. ROACH Criminal District Attorney Collin County, Texas JOHN R. ROLATER, JR. Assistant Criminal District Attorney Chief of the Appellate Division /s/ Jeffrey Garon JEFFREY GARON Assistant Criminal District Attorney 2100 Bloomdale Road, Suite McKinney, Texas State Bar No (972) FAX (972) CERTIFICATE OF SERVICE A true copy of the State s Brief has been mailed to counsel for Appellant, Mark Heidenheimer, 2411 Virginia Parkway, Suite 7, McKinney, Texas on this, the 21st day of January /s/ Jeffrey Garon JEFFREY GARON Assistant Criminal District Attorney 14