# Christensen v. State

> Texas Court of Appeals, 1st District (Houston) · December 5, 2007 · 240 S.W.3d 25

URL: https://www.frixlaw.com/law-library/cases/9729203

## Case

- **Full name:** Edward CHRISTENSEN, Appellant, v. the STATE of Texas, Appellee
- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** December 5, 2007
- **Citations:** 240 S.W.3d 25; 2007 WL 1953894
- **Precedential status:** Published
- **Opinion:** Dissent by Taft
- **Judges:** Elsa Alcala
- **Cited by:** 83 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9729203

## How later opinions describe it (automated extraction)

- holding that deception after an alleged crime is one circumstance that may permit an inference of guilt when combined with other evidence

## Opinion text

TIM TAFT, Justice,
dissenting on rehearing.
I respectfully dissent from the holding that the evidence is legally insufficient. I write to present the facts viewed in the light most favorable to the jury’s verdict, considering the combined evidence and the reasonable inferences therefrom, as called for by the majority opinion. See Evans v. State, 202 S.W.3d 158, 166 (Tex.Crim.App.2006) (we must consider logical force of combined pieces of circumstantial evidence, coupled with reasonable inferences therefrom); King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000) (we view all evidence in light most favorable to verdict).
The evidence showed an ongoing course of action whereby the Harris County Deputies’ Organization (“HCDO”) raised money by employing telephone solicitors who received 75% to 80% of the money raised. The telephone solicitations mentioned various charities HCDO was ostensibly supporting, causing the persons solicited to believe that the donations, or at least a substantial portion thereof, were going to these charities. The course of action was set in motion by a letter signed by appellant, the President of HCDO, whenever a new solicitation campaign or program was to begin. Ron Kowalsky 1 was the pri *40 mary telemarketer with whom appellant acting as HCDO President had interaction, but Kowalsky also employed John Merritt and others as subcontractors. 2 As HCDO President, appellant signed two separate letters authorizing the solicitation of funds in this manner mentioning Toys for Tots as the featured charity. As a Marine whose father, brothers, uncles, and cousins were Marines, appellant testified that he was very familiar with Toys for Tots. However, the Marine Corps does not allow telephone solicitations, and does not allow hiring telemarketers to dilute the money that would go toward buying gifts for the recipients of Toys for Tots. As HCDO President, appellant also was one of two signers on each of the checks Kowalsky received for 75% to 80% of the funds received through the telemarketing program. 3
After the police executed a warrant to seize evidence at John Merritt’s telemarketing location, appellant was asked to explain to the HCDO Board about Toys for Tots, and he said he would look into it. Jurors reasonably could have viewed appellant’s lack of candor as inculpatory, when, even according to his own witnesses, appellant had already been shown checks with notations for Toys for Tots and copies of the letter he signed concerning Toys for Tots, and appellant had called off the fund-raising for Toys for Tots. At the next Board meeting, appellant claimed to have checked with an unnamed sergeant at the Marine Corps base who stated what they were doing was okay. However, HCDO never had official permission or authorization to be involved with Toys For Tots in any capacity, much less to solicit donations for Toys for Tots. Jurors reasonably could have viewed appellant’s attempt to get permission from some unnamed sergeant, as opposed to getting official approval, as part of a cover-up.
Between September and December 2000, HCDO received $20,515 via 222 checks with notations “Toys for Tots.” A donation of $500 may have been made by HCDO to Toys for Tots in 1998, 1999, or 2000, 4 and $1700 worth of bicycles was given, at appellant’s direction, by HCDO to Toys for Tots at another deputies’ union’s Christmas party in 2000. The bicycles were donated only after a police raid on Merritt’s telemarketing operation where an original of appellant’s letter, authorizing the Toys for Tots solicitation program, and scripts embellishing on the letter, were recovered. Indeed, the Marines in uniform at the other deputies’ union Christmas event had been instructed by their *41 superiors, who had been informed of the criminal investigation, to receive the bicycles without incident, knowing that the bicycles would have to be turned over to law enforcement investigators to be kept as evidence. Thus, the donation could have been viewed by the jury as an attempt to cover up or mitigate damage. Unlike HCDO, the other deputies’ union was an approved supporter of Toys for Tots. The fact that appellant chose to give the bikes through that other union further supports the inference that appellant knew HCDO was not an approved supporter of Toys for Tots. When the HCDO Board found out solicitations had been made for Toys for Tots, it passed a motion to determine how much money had been so received in order to give it to Toys for Tots. HCDO Treasurer, Terry Padilla, refused to cooperate in the effort. Her position was that the checks were payable to HCDO regardless of whether Toys for Tots had been written in the place noting the purpose of the check. At trial, 18 of the 21 alleged complainants, who had written checks totaling $8,000, testified. They would not have sent checks to the telemarketer if they had known that Toys for Tots would not receive the majority of the funds.
Appellant raises eight arguments as to why the evidence is both legally and factually insufficient, but these arguments are beside the point. The point is that appellant knowingly set in motion a scheme, which he knew was not authorized by Toys for Tots, and by which hundreds of donors were deceived into giving thousands of dollars because they thought that most of the money would go to Toys for Tots.
While viewing the evidence in the light most favorable to the verdict does not usually involve an examination of an appellant’s side of the story, such an examination here adds further reason why the jury likely chose to believe the State’s main witness, Kowalsky, rather than appellant, who also testified, regarding the mechanics of HCDO’s fundraising program. Kowal-sky testified about a common course of conduct involving other solicitation programs or campaigns in addition to the Toys for Tots program. The usual modus operandi was for appellant to inform Kow-alsky of a new charitable entity, Kowalsky would prepare the letter, and appellant would sign it; thereby authorizing the solicitation campaign to go forward. The letter would provide the script for the telemarketers. 5 In this case, Kowalsky *42 could not remember whether he or appellant had come up with the idea for Toys for Tots or whether they had discussed the letter before or after he had submitted it to appellant, but he definitely remembered discussing the letter involving Toys for Tots with appellant either before or after submitting it to appellant for his signature.
Appellant testified, to the contrary, that the letter was prepared by Kowalsky after Kowalsky had asked appellant what were the various causes HCDO had supported over the years. Appellant testified that the letter was merely a thank you letter, intended to show a charity HCDO supported, to be sent after a donation was received. As the concurring opinion mentions, the first line of the letter does thank the donor on behalf of HCDO for the donor’s generous support. However, the main portion of the letter, an eight-line paragraph in between two two-line paragraphs, speaks of HCDO lending a helping hand to Toys for Tots, describes in a very touching manner what Toys for Tots does for poor children, and ends with “Let us all as a community give what we can in order to bring some joy and laughter into the lives of those who are less fortunate than others.” Thus, the letter itself appears to be more of a solicitation than a thank you for a donation. Indeed, most donations received did not indicate for what charity they were given, so that a letter mentioning only a single charity would not have been a very useful thank you letter. A thank you letter for donors who donated to HCDO would have been more consistent with appellant’s story that the contributions were solicited for HCDO and not the charities, but no such letter, if any existed, was produced. Moreover, the only times that the letter was sent to donors by the solicitors was when they requested it for their records or for verification. Some donors required the letter for verification before they would give. Thus, the record shows that the letter was not used as a thank you letter. See King v. State, 174 S.W.3d 796, 811-12 (Tex.App.-Corpus Christi 2005, pet. ref'd) (looking to all facts and circumstances to find that complainant was victim of theft by deception even though she had signed document stating she was giving the money as gift).
Appellant presented Terry Padilla, HCDO Treasurer, as a witness. Padilla testified that she was troubled when she began to notice checks with the Toys for Tots notations because she knew HCDO was not affiliated with the United States Marine Corps Toys for Tots Program. She first contacted Kowalsky who brought in old copies of letters signed by appellant. Padilla then brought the matter to appellant’s attention. She testified that appellant looked shocked and immediately made a phone call to the fundraiser to stop fundraising for any cause other than HCDO. Of course, the prosecutor on cross-examination presented the possibility that appellant’s look of shock may have been from being caught. Indeed, the record shows no effort made by Padilla or appellant to try to stop depositing the Toys for Tots checks in HCDO’s account or to try to refund any Toys for Tots donations. The only action in that regard by appellant was to stop any further solicitation for Toys for Tots, and then to arrange a donation of bicycles to Toys for Tots.
Finally, appellant introduced into evidence the agreed judgment and permanent injunction that resulted from the civil suit *43 brought by the Harris County Attorney’s Office on behalf of the State of Texas against HCDO, appellant, Kowalsky, and Merritt. One of the provisions of that judgment was that HCDO and appellant make a public apology to be published in the Houston Chronicle and the Harris County Star, a newspaper published by HCDO, as follows:
The Harris County Deputies’ Organization, Local No. 154, and Ed Christensen, its president, apologizes to the United States Marine Corps “Toys for Tots” Program and the citizens of Harris County for any misunderstanding or confusion caused by their telephone solicitations in the name of the United States Marine Corps “Toys for Tots” Program in 1998, 1999 and 2000. These solicitations were made without the knowledge or permission of the United States Marine Corps “Toys for Tots” Program and will not be repeated in the future.
This public apology is by HCDO and appellant for their telephone solicitations in the name of the United States Marine Corps “Toys for Tots” Program.
Faced with the choice of believing appellant’s or Kowalsky’s version of what the letter was and how it was used, the jury was entitled to believe Kowalsky. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000) (jurors are entitled to accept one version of facts and reject another).
The majority opinion would view the facts of this case as a civil matter akin to theft convictions resulting from otherwise contractual civil disputes as in Peterson v. State, 645 S.W.2d 807 (Tex.Crim.App.1983) and Phillips v. State, 640 S.W.2d 293 (Tex.Crim.App.1982). This Court distinguished those two cases as involving construction contracts where cash-flow problems made it impossible for contractors to complete a job as originally promised. See Ellis v. State, 877 S.W.2d 380, 383 (Tex.App.Houston [1st Dist.] 1994, pet. ref'd) (upholding conviction for theft by deception when Ellis repeatedly entered into agreements to provide financing for credit-challenged complainants on basis that record established deception, not merely failure to perform). The $1,700 worth of bicycles the majority opinion views as partial performance in this case was given to Toys for Tots after the search warrant had been executed on Merritt’s telemarketing operation. Toys for Tots had already been alerted to the investigation, so that the bicycles were received by Marines as evidence to be turned over to law enforcement. This is akin to the delivery of $8000 Ellis claimed was partial performance in Ellis v. State, but which this Court found not to be performance under the terms of any contract. See id. More importantly, there was no contractual relationship here between HCDO and the donors.
I would hold that the evidence, viewed in the proper light, considering the combined evidence and inferences therefrom, proves beyond a reasonable doubt that appellant intended that donors be deceived into giving money to HCDO that was meant for Toys for Tots and aided the commission of the offense by authorizing the solicitation campaign and setting it in motion by his signature on the solicitation letter. Accordingly, I respectfully dissent from the holding that the evidence is legally insufficient.
. When HCDO originally contracted with Kowalsky, prior to appellant having become *40 President of HCDO, Kowalsky was referred to HCDO by appellant.
. Kowalsky testified that he turned in lists of his subcontractors, including Merritt, to HCDO from time to time. Merritt testified that he had only one contact with appellant and that was over the phone when Merritt had a problem with a "sale” not concerning Toys for Tots. Merritt identified himself to appellant as working for Kowalsky.
. The relative percentage received by the telemarketers versus HCDO is the typical split between telemarketers soliciting for virtually every police and fireman's organization.
.While an exhaustive search of HCDO’s records produced no check written by HCDO to Toys for Tots, two checks for $500 were written to "M. Brister’s Toys for Children and Funtastic Toys, Constable Abercia,” in the first week of December 2000. These were the only two checks found written for toys for children. A deputy from another deputies' union, which was an approved Toys for Tots supporter, testified that he received a check for $500 from HCDO in 1998, 1999, or 2000. This deputy said the check was in response to his request for funds on behalf of Toys for Tots, a request he had made annually to the HCDO Board for many years. Not even the one check the deputy said he had received could be found in the HCDO records.
. Kowalsky testified that the letter provided the script, and Merritt testified that he prepared the script from the letter provided by Kowalsky. Unfortunately, the record does not contain the script Merritt wrote for the Toys for Tots campaign. Instead, defense counsel used a script from another program, the Annual Crime Prevention Program, which apparently had been altered by one of Merritt’s telemarketers in order to be used for the Toys for Tots campaign.
Both sides attempted to exploit the similarities and differences between the altered script and the letter appellant signed regarding Toys for Tots. The portions of each pertaining to Toys for Tots are set out for comparison.
The letter stated in regard to the Toys for Tots campaign: “Every year at this time the Harris county Deputies’ Organization lends a helping hand of support to the ‘Toys for Tots’ program. This program provides toys for children of families who cannot afford to do so, and to those children who have no family. Just knowing that there is a light at the end of the tunnel gives hope to these children year after year. Let us all as a community give what we can in order to bring some joy and laughter into the lives of those who are less fortunate that others.” The altered script stated regarding the Toys for Tots campaign: "And right now we’re working on our Toys for Tots program.... Will one of those [pledges of $300, $200, or $100] be okay for you this year, so the kids as well as the deputies could count on you this y ... ? ... — Kids that don't have par *42 ents that can afford Xmas. — And kids that don’t have any parents at all.”
Both the letter and the script exploit a natural proclivity to support efforts to provide Christmas gifts for poor children and orphans.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9729203. Public record. Not legal advice.