Massey, Henry Potthast v. State

Opinion issued July 29, 2004

In The

Court of Appeals

For The

First District of Texas

NOS. 01-02-00839-CR

01-02-00840-CR

01-02-00841-CR

01-02-00842-CR

HENRY POTTHAST MASSEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause Nos. 888,985; 888,986; 888,987; & 888,988

MEMORANDUM OPINION

After a bench trial, appellant, Henry Potthast Massey, was found guilty of three

offenses of tampering with a government record and one offense of theft. The trial

court sentenced appellant to a $10,000 fine and two years’ confinement for each

tampering offense, and eight years’ confinement for the theft, with the sentences to

run concurrently. The trial court also ordered appellant to pay restitution of $329,600

to his deceased daughter’s estate trust. On appeal, appellant contends that the order

of restitution conflicts with the oral pronouncement of judgment and that he was

denied due process when the trial court failed to apply the doctrine of unclean hands

and refused to grant his motion for a continuance.

We affirm.

Background

In 1995, two years after appellant’s daughter, Courtney, was killed in a car

accident, appellant settled a wrongful death lawsuit; $371,138.94 was awarded to his

daughter’s estate. Appellant’s ex-wife sought to use appellant’s portion of

Courtney’s estate to satisfy a judgment she had obtained against appellant. The

probate judge placed the money in a safekeeping account pending resolution of the

matter. Appellant’s other daughter, Ann, obtained an order from the judge permitting

her to withdraw money from the account to pay burial costs and attorney’s fees

related to Courtney’s death. Appellant used this court order as a template for creating

fictitious orders to withdraw more money from the safekeeping account, without

judicial knowledge or permission. He then persuaded Ann to disburse funds, created

false accounting statements to provide to the trial court, and forged Ann’s signature

on these statements and other documents. Within four years, appellant depleted the

entire account.

At trial, appellant admitted tampering with documents and offered more than

once to make full restitution, but contended he was not guilty of theft because the

assets in Courtney’s estate belonged not to the estate, but to him.

Order of Restitution

In his first point of error, appellant contends that, because the trial court’s oral

pronouncement of eight years imprisonment for the theft offense made no mention

of restitution, this Court should strike the written addendum to the judgment requiring

him to make restitution of $329,600 to Courtney’s estate.

The oral and written pronouncements of appellant’s punishment are the

same—eight years’ imprisonment. Restitution is not part of a judgment; rather, it is

a separate recommendation to the parole board based on evidence adduced at trial.

See Campbell v. State , 5 S.W.3d 693, 696 (Tex. Crim. App. 1999). We review a

restitution award under an abuse of discretion standard. Id. The amount of restitution

recommended must be just and must (1) have a factual basis in the record; (2) be

ordered for a crime the defendant committed; and (3) be within the amount of loss

sustained by the victim. Id. at 699 . Here, the record shows that appellant

misappropriated at least $329,600 from his deceased daughter’s trust. This is the

amount of restitution recommended as a condition of parole and is thus a just amount.

Morever, as the State notes and the record reflects, appellant repeatedly expressed his

willingness and ability to make full restitution, and promised to do so whenever the

judge determined that he should. Accordingly, he cannot now complain on appeal

about being ordered to pay restitution. See id. at 702 (noting that because defendant

asked court to award restitution to victims, he was precluded from raising complaint

regarding restitution on appeal).

We overrule the first point of error.

Due Process

In his second, multifarious point of error, appellant argues that he was denied

due process when (1) his attorney failed to establish the application of the doctrine

of unclean hands and (2) the trial court denied his motion for continuance. Appellant,

however, has failed to develop any legal argument with proper citations to authority

or to relate the law to the facts with appropriate citations to the record.

Texas Rule of Appellate Procedure 38 provides that a brief to this Court shall

contain, among other things, a concise statement of the facts of the case, supported

by record references, and a clear and concise argument for the contentions made with

appropriate citations to authorities and the record. Tex. R. App. P. 38.1. Rule 38.1

is not satisfied by merely uttering brief, conclusory statements, unsupported by

appropriate legal citation. See Vuong v. State , 830 S.W.2d 929, 940 (Tex. Crim. App.

1992); Franklin v. Enserch, Inc., 961 S.W.2d 704, 711 (Tex. App.—Amarillo 1998,

no pet.). Moreover, mere citations are not sufficient to comprise an argument that

suffices under Rule 38.1. An appellant’s brief also must argue to the court the law

and the facts that weigh in the party’s favor. See State v. Gonzalez, 855 S.W.2d 692,

697 (Tex. Crim. App. 1993); McFarland v. Sanders, 932 S.W.2d 640, 647 (Tex.

App.—Tyler 1996, no writ). When appellant cites to the exhibits, he wholly fails to

discuss the facts in light of legal authority to uphold his burden of demonstrating to

this court that the trial court committed error.

Given the foregoing, we conclude that appellant has failed to adequately brief

this point of error. See Swearingen v. State, 101 S.W.3d 89, 100 (Tex. Crim. App.

2003); McCarthy v. State, 65 S.W.3d 47 , 49 n.2 (Tex. Crim. App. 2001). It is not this

court’s burden to formulate appellant’s argument. See Tex. R. App. P. 38.1(h).

Because appellant has failed to discuss the law and the facts and to make cogent

arguments concerning how we should decide the issue, appellant has waived these

issues on appeal.

The State interprets appellant’s second point of error as an assertion of

ineffective assistance of counsel. To the extent that appellant makes this argument,

he cannot prevail. There is nothing in the record to indicate trial counsel’s strategy.

Without such information, we cannot evaluate the merits of such a complaint. See

Bone v. State , 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

Finally, had appellant preserved his complaint regarding denial of his motion

for continuance, the record reflects that the trial court did not err in denying the

motion. Appellant’s written reasons—to locate missing witnesses—varied from the

reasons he orally gave to the trial court—to obtain paperwork and replace his counsel.

Moreover, the motion for continuance contained neither the addresses nor the content

of the testimony appellant expected his missing witnesses to provide. This

information must be provided to properly preserve error. See Tex. Code Crim. Proc.

Ann. art. 29.06 (Vernon 1989); Cates v. State , 72 S.W.3d 681, 691-92 (Tex.

App.—Tyler 2001, no pet.).

We overrule appellant’s second point of error.

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Chief Justice Radack and Justices Keyes and Bland.

Do not publish. Tex. R. App. P. 47.2( b).