Kimberly Evette Butler v. State

Opinion issued March 1, 2012

In The

Court of

Appeals

For The

First District

of Texas

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NO. 01-11-00414-CR

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Kimberly Evette

Butler , Appellant

V.

The State of Texas , Appellee

On

Appeal from the 230th District Court

Harris

County, Texas

Trial Court Case No. 1244182

MEMORANDUM OPINION

Appellant, Kimberly Evette

Butler, was charged by indictment with attempted theft of property valued at

$200,000 or more. [1] Appellant pleaded not guilty. The jury found her guilty and assessed

punishment at 80 years’ confinement. In

two issues, appellant argues (1) the evidence was legally insufficient to

support her conviction and (2) the trial court erred in denying her motion for

dismissal based on entrapment.

We affirm.

Background

Appellant presented two fraudulent bills of exchange, each

with the face value of 5 billion dollars, to a Wells Fargo bank in Dallas,

Texas. The documents were transferred to

another Wells Fargo bank in Houston, Texas for processing.

The documents were determined to be fraudulent. The coloring differed between the two

documents, though they should have been uniform. The documents were guaranteed twice by the

United States government, though they should have only been guaranteed

once. Certain coding information

appeared at the bottom of them that would not appear on a bill of

exchange. Only one had an original

stamp. The account domain payer was

identified as both the U.S. Secretary of Treasury and U.S. Secretary of

Transportation, though the Department of Transportation is not involved in

bills of exchange.

The payee on the documents was identified as Jonathan Todd

Clinard .

Documentation provided in support of the bills of exchange identified Clinard as a man with assets in excess of 2.8 trillion

dollars. The testimony at trial

established that it should have been easy to find information on a trillionaire with a simple internet search. The passport number given for Clinard was for an individual living in the state of

Washington who had been arrested multiple times for driving while

intoxicated. Otherwise, no other

information could be found for this person.

After the bills of exchange had been transferred to

Houston, appellant came to the Houston office with Bernard Mitchell. Appellant indicated that she wanted to set up

a new bank account to deposit the money from the bills of exchange. She was not able to set up a new account because

she did not pass their risk-screening process.

At the time, appellant had another account open with Wells Fargo for a

business identified as Asian Horizon General Trading. Appellant was the only signer for that

account.

At that meeting, appellant presented a business card

identifying herself as the president and CEO of the company. The website listed on the card did not

exist. The card listed two phone

numbers. One was disconnected. The other was answered by a male who refused

to identify himself and then hung up.

When the bills of exchange were determined to be fraudulent,

they were turned over to Carlos Zepeda, a fraud investigator for Wells

Fargo. Appellant called multiple times

to check on the status of the bills of exchange and was referred to Zepeda,

posing as a processor for the bills. One

telephone conversation began with appellant saying, “This is Ms. Butler and I’m

calling about my ten Bs .”

Zepeda contacted Special Agent J. Breedlove with the U.S.

Secret Service. After investigating the

matter, Special Agent Breedlove asked Zepeda to assist in a sting operation for

appellant. Under the plan, Zepeda

arranged a meeting with appellant and Mitchell on December 10, 2009 at the

Houston Wells Fargo office. He asked

appellant to come to the office to discuss the transaction.

On that day, Zepeda took appellant and Mitchell into a

conference room at the bank. The meeting

took about one hour. Zepeda began by

asking for information about her company, Asian Horizon General Trading. Even though she was president and CEO of the

company, appellant was unable to answer most questions and turned to Mitchell

for him to answer. Appellant acted

nervous, worried, and scared during the meeting, stuttering frequently when

asked questions.

At the end, the conversation turned to depositing the

money, and appellant became more confident.

She was adamant that the money be made available for withdrawal the next

day. Zepeda had appellant endorse the

bills of exchange and sign two collection item receipts, which indicated that

she could verify the final endorsement on the bills of exchange. Appellant signed and presented the documents

to Zepeda.

Once he obtained the signatures, Zepeda left the

conference room and Breedlove entered and arrested appellant.

After the sting operation, Special Agent Breedlove

obtained an email from appellant’s husband to appellant and Mitchell. Appellant’s husband stated in the email,

“Here are a few points about Asian Horizon General Trading Company that we

should know and remember.” The points

included when Asian Horizon was created, who Clinard

was, what the money will be used for, where the corporate headquarters will be

located, and the identity of their legal representative—with an instruction to

tell Wells Fargo that he had tried to contact them this morning and wants them

to call him. While the legal

representative was a real person, he denied having any involvement in the

purported transaction.

Sufficiency of the Evidence

In her first issue, appellant argues the evidence was

legally insufficient to support her conviction.

A.

Standard of Review

This Court reviews sufficiency-of-the-evidence challenges

applying the same standard of review, regardless of whether an appellant

presents the challenge as a legal or a factual sufficiency challenge. See

Ervin v. State , 331 S.W.3d 49 , 53–54 (Tex. App.—Houston [1st Dist.] 2010,

pet. ref’d ) (construing majority holding of Brooks v. State , 323 S.W.3d 893 (Tex. Crim.

App. 2010)). This standard of review is

the standard enunciated in Jackson v.

Virginia , 443 U.S. 307, 319 , 99 S. Ct. 2781, 2789 (1979). See id .

Pursuant to this standard, evidence is

insufficient to support a conviction if, considering all the record evidence in

the light most favorable to the verdict, no rational fact finder could have

found that each essential element of the charged offense was proven beyond a

reasonable doubt. See Jackson , 443 U.S. at 319 , 99 S. Ct. at 2789 ; In re Winship ,

397 U.S. 358, 361 , 90 S. Ct. 1068, 1071 (1970); Laster v. State , 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State , 235 S.W.3d 742, 750

(Tex. Crim. App. 2007). We can hold

evidence to be insufficient under the Jackson

standard in two circumstances: (1) the record contains no evidence, or merely a

“modicum” of evidence, probative of an element of the offense, or (2) the

evidence conclusively establishes a reasonable doubt. See Jackson , 443 U.S. at 314 , 318 n.11, 320, 99 S. Ct. at 2786 ,

2789 n.11; see also Laster ,

275 S.W.3d at 518 ; Williams , 235

S.W.3d at 750 .

The

sufficiency-of-the-evidence standard gives full play to the responsibility of

the fact finder to resolve conflicts in the testimony, to weigh the evidence,

and to draw reasonable inferences from basic facts to ultimate facts. See

Jackson , 443 U.S. at 319 , 99 S. Ct. at 2789 ; Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). An appellate court presumes that the fact

finder resolved any conflicts in the evidence in favor of the verdict and

defers to that resolution, provided that the resolution is rational. See

Jackson , 443 U.S. at 326 , 99 S. Ct. at 2793 . In viewing the record, direct and

circumstantial evidence are treated equally; circumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor, and

circumstantial evidence alone can be sufficient to establish guilt. Clayton ,

235 S.W.3d at 778 . Finally, the “cumulative force” of all the

circumstantial evidence can be sufficient for a jury to find the accused guilty

beyond a reasonable doubt. See Powell v. State , 194

S.W.3d 503, 507 (Tex. Crim. App. 2006).

B.

Analysis

Appellant argues that the evidence is legally insufficient

to support her conviction because there is no evidence of her intent. Specifically, she argues there is no evidence

that she knew the documents were fraudulent.

Section 15.01 of the Texas Penal Code provides, in

relevant part, “A person commits an offense if, with specific intent to commit

an offense, he does an act amounting to more than mere preparation that tends

but fails to effect the commission of the offense intended.” Tex. Penal Code Ann. § 15.01(a)

(Vernon 2011).

Section 31.03 provides, in relevant part, “A person commits an offense

if he unlawfully appropriates property with intent to deprive the owner of

property.” Id. § 31.03(a) (Vernon Supp. 2011).

“[B] oth intent and knowledge may

be inferred from circumstantial evidence and proof of a culpable mental state

almost invariably depends on circumstantial evidence.” Tottenham v. State , 285 S.W.3d 19,

28 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (citing Dillon v. State , 574 S.W.2d 92, 94 (Tex.

Crim. App. 1978)). Intent may be

inferred from circumstantial evidence such as the acts, words, and conduct of

the accused. Wolfe v. State , 917 S.W.2d 270, 275

(Tex. Crim. App. 1996).

Five-billion-dollar bills of exchange are not commonly encountered

documents. One of the Wells Fargo

employees that testified, Ryan Norris, stated that in his over five years at

the bank, he had never encountered someone trying to deposit such a large

amount of money. It strains credulity to

suggest that someone could come in possession of bills of exchange for such a

large amount without knowing their origin and having some basis to believe in

their authenticity.

In support of that, the record shows that appellant never

indicated any uncertainty as to the documents’ origins or authenticity. Instead, she demonstrated a firm belief that

the money identified in the bills was hers, including calling Wells Fargo and

asking about “my ten Bs .” The evidence also shows that appellant was

working with a group actively involved in attempting to create an elaborate

fake back story and fake documentation to support the bills of exchange. Appellant represented herself as president

and CEO of a company that she could demonstrate almost no knowledge of. Her business card included a nonexistent

website and wrong phone numbers. Her

demeanor at the December 10 meeting was nervous, worried, and scared,

suggesting that she was aware of the falsity of the scheme.

We hold that there was legally sufficient evidence in the

record to support a determination that appellant knew the documents were

fraudulent and, accordingly, intended to unlawfully appropriate property with

the intent to deprive the owner of the property. See

Tex. Penal Code Ann. § 31.03(a). We overrule appellant’s first issue.

Entrapment

In her second issue, appellant argues the trial court

erred in denying her motion for dismissal based on entrapment. First, we must review the procedural posture

of this issue.

A.

Procedural Posture

Under Texas law, entrapment is a defense to

prosecution. Tex. Penal Code Ann. § 8.06(a) (Vernon 2011). At trial, if the defendant presents a prima

facie showing of entrapment, the burden shifts to the State to disprove

entrapment beyond a reasonable doubt. Hernandez v. State , 161

S.W.3d 491, 498 (Tex. Crim. App. 2005).

The defendant may also raise the legal issue of entrapment in a pretrial

hearing. Id. ; see also Tex. Code Crim. Proc. Ann. art. 28.01,

§ 1(9) (Vernon 2006) (listing entrapment as matter that can be determined

at a pretrial hearing). In that

circumstance, however, the burden rests on the defendant to establish beyond a

reasonable doubt that he was entrapped. Hernandez , 161 S.W.3d

at 499 . Because the procedural

posture of the claim of entrapment affects who had the burden of proof and, in

turn, our review on appeal, we must resolve how this matter was presented to

the trial court.

Appellant filed a pretrial Motion to Dismiss Based on

Entrapment. In the motion, she indicated

that she wanted to present the motion at a pretrial hearing. That pretrial hearing never took place,

however.

After the State rested on its case in chief, appellant

announced an intent to move for directed verdict and

the trial court retired the jury. The

following exchange then occurred:

[Appellant’s Counsel]: Your Honor, I filed a pretrial motion with a motion for directed

verdict.

THE COURT: You

can orally make your motion. That’s fine.

Appellant then argued her motion based on the

evidence that had been presented at trial and asserted that once she had

presented some evidence, the burden shifted to the State. Both parties and the trial court then

discussed whether the motion should be granted based on the evidence presented

at trial. Ultimately, the trial court

denied the motion.

No pretrial hearing on the motion was ever held. The evidence argued by the parties and

considered by the trial court was the evidence presented at trial. We hold that the trial court’s ruling on

appellant’s motion was not a ruling on a pretrial motion but, instead, was a

ruling on a motion for directed verdict based on the evidence presented at

trial. Accordingly, appellant bore the

burden to present a prima facie showing of entrapment and, if that burden was

met, the burden of proof then shifted to the State to disprove entrapment

beyond a reasonable doubt. See id. at 498 .

B.

Standard of Review

When conflicting

evidence exists on the issue of entrapment, the trial court does not err in

overruling a motion to dismiss. Cook v. State , 646 S.W.2d 952, 952 (Tex.

Crim. App. 1983). The trial court, as

the trier of fact, must weigh the evidence and determine whether the defendant

was entrapped as a matter of law. Soto v. State , 681 S.W.2d 602, 604 (Tex.

Crim. App. 1984); Bush v. State , 611

S.W.2d 428 , 430–31 (Tex. Crim. App. 1980).

On review, the issue of entrapment centers on the legal sufficiency of

the evidence. Flores v. State , 84 S.W.3d 675, 681 (Tex. App.—Houston [1st Dist.]

2002, pet. ref’d ).

The sufficiency of the evidence turns on whether, viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt and

also could have found against the defendant on the issue of a defense beyond a

reasonable doubt. Adelman v. State , 828 S.W.2d 418, 421 (Tex. Crim. App. 1992)

(citing Saxton v. State , 804 S.W.2d

910, 914 (Tex. Crim. App. 1991)).

C.

Analysis

Section 8.06 of the Texas Penal Code provides, in part:

It is a defense to prosecution that the actor engaged in

the conduct charged because he was induced to do so by a law enforcement agent

using persuasion or other means likely to cause persons to commit the

offense. Conduct merely affording a

person an opportunity to commit an offense does not constitute entrapment.

Tex. Penal Code Ann. § 8.06(a). When a defendant raises the defense of

entrapment, she must raise prima facie evidence that (1) she engaged in the

conduct charged; (2) because she was induced to do so by a law enforcement

agent; (3) who used persuasion or other means; and (4) those means were likely

to cause persons to commit the offense. Hernandez , 161 S.W.3d

at 497 .

The entrapment defense has both subjective and objective

elements. Id. at 497 n.11 (citing England

v. State ( T. England ), 887 S.W.2d

902 , 913–14 (Tex. Crim. App. 1994)).

“The subjective element requires evidence that ‘the accused himself was

actually induced to commit the charged offense by the persuasiveness of the

police conduct.’” Id. (quoting T. England ,

887 S.W.2d at 913 n.10 ). Once inducement is shown, the issue becomes

an objective test of “whether the persuasion was such as to cause an ordinarily

lawabiding person of average resistance nevertheless

to commit the offense.” T. England , 887 S.W.2d

at 914 .

Appellant argues that “once [the] trier of fact determines

that there was inducement to commit [a] criminal act, [the] court must consider

only [the] nature of [the] State agent’s activity without any reference to

[the] previous disposition of [the] particular defendant to commit [the]

crime,” relying on England v. State ( R. England ), 729 S.W.2d 388, 391 (Tex.

App.—Fort Worth 1987, pet. ref’d ). Regardless of whether predisposition to

commit the crime is relevant after

police inducement has been found, it is relevant to the determination of police

inducement. See Hernandez , 161 S.W.3d at 497 n.11 (holding “evidence that a

person has committed a crime before is some evidence that a subsequent

commission of the crime was not induced by police”).

Nevertheless, there is no evidence in the record that

appellant had committed or attempted to commit theft before. Accordingly, these cases do not apply to

appellant.

More applicable to this case is whether the criminal

design originated with appellant. “The

issue of entrapment is not raised where the facts only indicate that the

criminal design originates in the mind of the accused and the law enforcement

official or their agents merely furnish opportunity for or aid the accused in

the commission of the crime.” Reese v. State , 877 S.W.2d 328, 333

(Tex. Crim. App. 1994); see also Adams v.

State , 270 S.W.3d 657, 662 (Tex. App.—Fort Worth 2008, pet. ref’d ).

The fraudulent bills of exchange were created before Wells

Fargo or the Secret Service became involved.

Appellant possessed them and gave them to Wells Fargo in an attempt to

obtain 10 billion dollars from Wells Fargo.

Appellant made repeated calls before the sting operation asking about

the progress of obtaining the money, referring to the money as her “ten Bs .” Her demeanor at

the December 10 meeting suggested she was aware of the fraudulent nature of the

documents. There is evidence in the

record, then, to show that the criminal design originated with appellant. Because the criminal design originated with

appellant, it follows that she was not induced to commit the charged offense by

the persuasiveness of the police conduct.

See Hernandez , 161 S.W.3d at

497 n.11 (holding subjective element requires evidence that accused herself was

induced to commit offense by persuasiveness of police conduct); Reese , 877 S.W.2d at 333 (holding no

inducement when criminal design originates in mind of accused and law

enforcement officials merely furnish opportunity for or aid in commission of

crime).

Appellant argues that Zepeda’s arranging the meeting and

giving the documents to her to sign was, at the very least, an implicit

representation that the documents were authentic. She argues that this representation was what

induced her to commit the crime. In

support of this argument, at trial and on appeal, appellant relies on Gifford v. State , 740 S.W.2d 76 (Tex.

App.—Fort Worth 1988, pet. ref’d ).

In Gifford , the

defendant and his wife wanted to put their child up for adoption. Id. at 78 . A married

couple wanting to adopt learned about Gifford and sought him out. Id. After initially declining, Gifford’s wife

called them six weeks later asking if they were still interested and if they

could help them out financially with about $3,500. Id. This amount exceeded the cost of the hospital

bills incurred with the birth of the child.

Id. The Texas Rangers were eventually

notified. Id.

Gifford indicated, however, that he was not sure of the

legality of the exchange and wanted everything to be done legally. Id. The adoptive couple assured him that they had

an attorney and they would take care of the legal issues. Id. The adoptive couple assured Gifford that the

process was legal. Id. The Fort Worth Court of

Appeals held that the false representations of the legality of the process was

entrapment because receiving money for putting a child up for adoption is not

inherently illegal. Id. at 79–80.

Appellant argues that it is not inherently illegal to

present a bill of exchange to a bank and that there is no evidence that she

knew the bills of exchange were fraudulent.

We have already held that there is evidence to support the

determination that appellant knew the bills of exchange were fraudulent. It is inherently illegal to obtain money from

a bank with fraudulent bills of exchange.

See Tex. Penal Code Ann. § 31.03(a).

Accordingly, Gifford is

distinguished from this case.

Moreover, there is no evidence to support the objective

portion of the test. Once inducement is

shown, the issue becomes an objective test of “whether the persuasion was such

as to cause an ordinarily lawabiding person of

average resistance nevertheless to commit the offense.” T.

England , 887 S.W.2d at 914 . The focus is on the law enforcement conduct

regardless of the predisposition of the particular defendant. Id. at 908 . The

question is “whether the persuasion used by the law enforcement agent was such

as to cause a hypothetical person—an ordinarily lawabiding

person of average resistance—to commit the offense.” Id.

The only evidence of any purported persuasion is Zepeda’s

offering the documents to appellant to sign.

Appellant argues that this act constituted at least an implicit

acknowledgement that the documents were authentic. Even assuming this were true, we hold that an

implicit acknowledgment of authenticity does not rise to the level of

persuasion that would cause an ordinary law-abiding person to present fraudulent

documents in order to obtain money. This

amounts to providing the appellant the opportunity to commit the crime, not an

inducement to commit it.

The actions of Wells Fargo agents, under the direction of

the Secret Service, merely afforded appellant the opportunity to commit an

offense, the intent for which originated with appellant. See Tex.

Penal Code Ann. § 8.06(a) (providing “[c] onduct

merely affording a person an opportunity to commit an offense does not

constitute entrapment”). We hold there

was legally sufficient evidence to support the trial court’s denial of

appellant’s directed verdict.

Conclusion

We affirm the judgment of the trial court.

Laura

Carter Higley

Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

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

[1] See Tex. Penal Code Ann. § 15.01(a) (Vernon 2011), § 31.03(a)

(Vernon Supp. 2011).