Petition for Writ of Certiorari — Newsom v. Texas

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9594-7 vec 1; 9%

- In The

SUPREME COURT OF THE UNIT: 9) STATES .

October Term, 1995

GARY NEWSOM

and

JEROME WOLF,

Petitioners,

vs.

THE STATE OF TEXAS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF TEXAS

THIRD SUPREME JUDICIAL DISTRICT

AT AUSTIN, TEXAS

Counsel for Petitioners:

JAMES M. MURPHY

Texas State Bar # 14700800

P.O. Box 140809

Dallas, Texas 75214

214-745-1532 (Telephone)

214-824-8021 (Facsimile)

December 11, 1995

NO.

In The

SUPREME COURT OF THE UNITED STATES

Octobe: Term, 1995

GARY NEWSOM

and

JEROME WOLF,

Petitioners,

vs.

THE STATE OF TEXAS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF TEXAS

THIRD SUPREME JUDICIAL DISTRICT

AT AUSTIN, TEXAS

Counsel for Petitioners:

JAMES M. MURPHY

Texas State Bar # 14700800

P.O. Box 140809

Dallas, Texas 75214

214-745-1532 (Telephone)

214-824-8021 (Facsimile)

December 11, 1995

QUESTIONS PRESENTED

1. Whether the Ex Post Facto clause of the

Constitution prohibits the action of the Texas Court of

Appeals in crafting two new important questions of state law

to the adverse affect of Petitioners in order to affirm

Petitioners’ convictions.

2. Whether Due Process of Law considerations

prohibit the action of the Texas Court of Appeals in crafting

two new important questions of state law to the adverse

affect of Petitioners in order to affirm Petitioners’

convictions.

3. Whether the Court of Appeals’ decision, which

crafted two new important questions of state law to the

adverse effect of Petitioners, violates the Petitioners’ Sixth

Amendment right to the effective Assistance of Counsel for

their defense.

LIST OF PARTIES

The undersigned attorney of record for Petitioner certifies

that the following listed persons have an interest in the

outcome of this case.

Petitioners:

Gary Newsom

Jerome Wolf

Respondent:

The State of Texas

TABLE OF CONTENTS

a EE I ncinsinnchtnsnpedidsesonutsctcnntinninueunen 2

haters iy Nee i A CRT Nie a SL RN 2

CONSTITUTIONAL PROVISIONS, STATUTES AND

Pe He ET ie iicdetnintiiiiiiintiiitibacmtsacniiane nadine 2

EET CF FOU CA ea eceincss sovcnsisecicasaniuacdsniaes 6

ARGUMENT AND REASONS FOR ALLOWANCE OF

TOE. CEIEE Sedsiosiivcniaibiasanibhipddmassubiaribbmleddasuedeaeidsieabicoee: 10

ARGUMENT UNDER QUESTIONS 1 & 2.......ccccccscssssees 12

ARGUMENT UNDER QUESTION 3........cccccccscceseseseseeees 24

CaN itcnnkortivsinirhinnscatceinateniistanilica aaa 29

TABLE OF AUTHORITIES

Constitutional Provisions

U.S. CONST., art. I, Sec. 9, cl. D esesseeversrererervessneeneereesenrnvne 2

U.S. CONST., AMENDMENT V.: ................::c:ccescceseeees 2,3

U.S. CONST., AMENDMENT VI ............:.c:ssscssseseseereeeeee 3

U.S. CONST., AMENDMENT XIV ....0000......cceceecceeeeeeteees 3

Cases

Arnold v. State, 786 §.W.2d 295, 298 (Tex. Crim. App.

Bigby v. State, 892 S.W.2d 864 (Tex. Crim. App. 1994).... 12

Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12

Bc PO CT IMIPED, vax eccadccesacecxatendsrcqevetssesncneninteesaeaeees 17

Boutte v. State, 824 S.W.2d 322 (Tex. App. - Hou.[1st Dist. ]

UTIL iracsonctsereccuivessarbsgevessadsecbenilionscessecanmiciaileaeaaaeiananaanns 13

Brown v. State, 828 S.W.2d 762 (Tex. Crim. App. 1991) 24

Brown v. State, 828 S.W.2d 762 (Tex. Crim. App. 1991). 21

Brown v. State, 828 S.W.2d 762 (Tex. Crim. App. 1991)... 13

Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L-Ed. 648 (1798).... 15

Duncan v. State, 850 S.W.2d 813 (Tex. App. - Hou.[14th

SE i SII -sssiniaccsinsionieacwicedb-sobuaiinide ean siiaeasonaneeane Nace eaaen: 13

Frank v. Magnum, 237 U.S. 309, 344, 35 S.Ct. 582, 593, 59

I CIE TIE SO. «ox: ovvessisinwonsinebovetabamvelananceenmeinaidala 17

Harris v. State, 790 S.W.2d 568, 587-88 (Tex. Crim.

OOD vasciccnrsvssncinsctersercinemsansnenpetciioniiaphmievtippiagait 20

Hillin v. State, 808 S.W.2d 486 (Tex. Crim. App. 1991)13, 21

Hilton v. State, 879 S.W.2d 74 (Tex. App. - Hou.[14th Dist. ]

PP cskiscecdbsvdenseccllin cach dipeabscutenctovaliasbntacsuraigemanisagiaarier 13

Hinojosa v. State, 875 S.W.2d 339 (Tex. App. - Corpus

ININGE, WUNIMED 2 10csdsbccksascnasosinidacuaareudacsseesanrameoaacnianiseanits 13

Hood v. State, 828 S.W.2d 87, 95 (Tex. App. - Austin 1992)14

Jones v. State, 821 S.W.2d 234 (Tex. App. - Hou.[14th

I Be iene sieceeicdn sean dence tetns ieenninedpatnnaammpemaiend 14

Kennerson vy. State, 848 S.W.2d 883 (Tex. App. - Hou.[14th

BT ies cdectitcte ch onset sticcattacktotssalaaeisnaanehien 13

Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51

RP IOIED nc bussed cars ipoevcetammaaam eames 16

Martin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993) .. 13

McCoy v. State, 889 S.W.2d 354 (Tex. App. - Hou.[14th

NIP III occ suanik accasceesnouieduoesiancomcicneanoneteateainaeontannad 13

Miller v. Florida, 482 U.S. 423, 107 $.Ct. 2446, 96 L.Ed.2d

IEE cicthoncnschsecuciesssensericoccekiecsutsbtansnsrinescnintattaaiaian 15

Miller v. State, 866 S.W.2d 243 (Tex. Crim. App. 1993)... 12

Rent v. State, 838 S.W.2d 548 (Tex. Crim. App. 1990)...... 13

Roberts v. State, 784 S.W.2d 430, 435 (Tex. Crim. App.

Sodipo v. State, 815 §.W.2d 551 (Tex. Crim. App. 1990)12,13

Sodipo v. State, 815 $.W.2d 551 (Tex. Crim. App. 1991)

III CN GIT 05. ccc scceassesrysnrentedeocesscastecceianuos 23

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

A INE socks ca sesntncdesosteedeauavoussoernnnaneetobeoouiens 28

Townsend v. State, 865 §.W.2d 469 (Tex. Crim. App. 1993)12

United States v. Brown, 555 F.2d 407, 419 (Sth Cir. 1977),

cert. den., 435 U.S. 904, 98 S.Ct. 1448, 55 L.Ed.2d 494

I hanes 16

United States v. Suarez, 911 F.2d 1016 (Sth Cir. 1990)...... 15

Warmowski v. State, 818 S.W.2d 505 (Tex. App. - San

pT. | SRNR Rp err ae Rs ln RA ath ae 14

Warmowski v. State, 853 S.W.2d 575 (Tex. Crim. App.

Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, ¢ 54,

67 L.Ed.2d 17 (1981)(quoting Cummings v. Missouri, 4

SE Ces, UEP asec ai ital chee ahescaclenansiieedtembanenes 15

Williams v. State, 837 S.W.2d 819 (Tex. App. - Hou. [14th

ee WU nlasiack scat a plscmiisaniccaitateua sieesspsuctaliae cs 13

Wright v. State, 873 S.W.2d 77 (Tex. App. - Dallas, 1994) 13

Statutes

ee ee BE ihictieehendiscrrcinrnncienicctedechibaebeecsenan 2

TEX. PENAL CODE ANN. Sec. 31.03. Theft (West 1994). 4

TEX. PENAL CODE ANN. Sec. 71.02 (West 1994)........... 4

Tex Code Crim.Proc.Ann (West 1989) .00...........cccccceeeeceeeeees 4

-vi-

Rules

Ruske 90, TEX.RiAPP.P. .ccccccccscccesscccccsscsconcsvesesscerssercesssoorsess

-Vii-

SUPREME COURT OF THE UNITED STATES

October Term, 1995

GARY NEWSOM

and

JEROME WOLF,

Petitioners,

vs.

THE STATE OF TEXAS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF TEXAS

THIRD SUPREME JUDICIAL DISTRICT

AT AUSTIN, TEXAS

Petitioners, GARY NEWSOM and JEROME WOLF.

respectfully request that a writ of certiorari be issued to

review the Judgment of the Court of Appeals for the Third

Supreme Judicial District at Austin, Texas, which affirmed

the judgments of conviction of the Petitioners in the 167th

District Court of Travis County, Texas

OPINIONS BELOW

The Court of Appeals affirmed Petitioners’

convictions and sentences on May 17, 1995 (Appendix A-1;

A-2). The unpublished opinion of the Court of Appeals

appears in the Appendix at A-3--33. Petitioners did not file a

motion for rehearing. Petitioners and the Respondent State

of Texas timely filed Petitions for Discretionary Review to

the Court of Criminal Appeals of Texas. All petitions were

refused without comment by the Court of Criminal Appeals

on September 13, 1995.

JURISDICTION

This Court's jurisdiction is invoked under 28 U.S.C.

Sec.tion 1254.

CONSTITUTIONAL PROVISIONS,

STATUTES

AND RULES INVOLVED

U.S. CONST., art. I, Sec. 9, cl. 3:

No Bill of Attainder or ex post facto Law shall be

passed.

U.S. CONST., AMENDMENT V:

2.

No person shall . . . be deprived of life, liberty, or

property, without due process of law... .

U.S. CONST., AMENDMENT VI:

In all criminal prosecutions, the accused shall enjoy the

right . . . to have the Assistance of Counsel for his

defence.

U.S. CONST., AMENDMENT XIV:

_... No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any

person of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction the

equal protection of the laws.

TEX. PENAL CODE ANN. Sec. 71.02 (West 1994):

(a) A person commits an offense if, with the intent to

establish, maintain, or participate in a combination or in

the profits of a combination or as a member of a

criminal street gang, he commits or conspires to

commit one or more of the following:

(1) murder, capital murder, arson, aggravated robbery,

robbery, burglary, theft, aggravated kidnapping,

kidnapping, aggravated assault, aggravated sexual

assault, sexual assault, or forgery;

(b) Except as provided in Subsection © of this section, an

offense under this section is one category higher than

the most serious offense listed in Subdivisions (1)

through (9) of Subsection (a) of this section that was

committed, and if the most serious offense is a Class A

misdemeanor, the offense is a felony of the third

-%

degree, except that if the most serious offense is a

felony of the first degree, the offense is a felony of the

first degree.

(c) Conspiring to commit an offense under this section is of

the same degree as the most serious offense listed in

Subdivisions (1) through (9) of Subsection (a) of this

section that the person conspired to commit.

TEX. PENAL CODE ANN. Sec. 31.03. Theft (West 1994):

(a) A person commits an offense if he unlawfully

appropriates property with intent to deprive the owner

of property.

(b) Appropriation of property is unlawful if,

(1) it is without the owner’s effective consent;

(e) Except as provided by Subsection (f) of this section, an

offense under this section is:

(5S) a felony of the second degree if:

(B) the value of the property stolen is $20,000 or more

but less than $100,000; or

Tex. Code Crim. Proc. Ann. art. 28.10 (West 1989):

(a) After notice to the defendant, a matter of form or

substance in an indictment or information may be

amended at any time before the date the trial on the

merits commences. On the request of the defendant, the

court shall allow the defendant not less than 10 days, or

a shorter period if requested by the defendant, to

respond to the amended indictment or information.

(b) A matter of form or substance in an indictment or

information may also be amended after the trial on the

merits commences if the defendant does not object.

(c) An indictment or information may not be amended

over the defendant's objection as to form or substance if

the amended indictment or information charges the

defendant with an additional or different offense or if

the substantial rights of the defendant are prejudiced.

Rule 90, TEX.R.APP.P.:

(c) Determination to Publish. A majority of the

justices participating in the decision of a case shall

determine, prior to the time it is issued, whether an

opinion meets the criteria for publishing, and if it does

not meet the criteria for publication, the opinion shall

be distributed only to the persons specified in Rule 91,

but a copy may be furnished to any interested person.

On each opinion a notation shall be made to "publish"

or "do not publish." Any party may move the appellate

court to reconsider the determination whether to

publish an opinion. The justices participating in the

decision of a case may reconsider their determination

whether to publish an opinion after it has issued.

However, the appellate court shall not order any

unpublished opinion to be published after the Supreme

Court or Court of Criminal Appeals has acted on any

party's application for writ of error, discretionary

review, or any other relief. The Supreme Court or the

Court of Criminal Appeals may on request of any party

or non-party to a court of appeals decision order a

court of appeals opinion published at any time.

(d) Standards for Publication. An opinion by a court

of appeals shall be published only if, in the judgment of

-5-

a majority of the justices participating in the decision, it

is one that (1) establishes a new rule of law, alters or

modifies an existing rule, or applies an existing rule to a

novel fact situation likely to recur in future cases; (2)

involves a legal issue of continuing public interest; (3)

criticizes existing law; or (4) resolves an apparent

conflict of authority. )

STATEMENT OF THE CASE

Both Petitioners were charged by indictment with the

offense of engaging in organized criminal activity' with the

predicate offense for the alleged organized activity being theft

over $20,000? in cause number 93-2962, filed February 8,

1991. R.I- 4-9. Petitioners were convicted under the first

count in the indictment which alleged in pertinent part that

Petitioners:

[With intent to establish and maintain and participate

in a combination and in the profits of a combination

consisting of [appellants], Pat Fry, [and] David

Williams, did commit the following offenses pursuant

to a continuing course of conduct:

On or about the 8th day of March, 1990, in the County

of Travis and State of Texas, Pat Fry and David

Williams and defendants Gary Newsome and Jerome

' Tex. Penal Code Ann. Sec. 71.02 (West 1994)

* Tex. Penal Code Ann. Sec. 31.03(e)(5) (West 1994);

ie

Wolf did then and there unlawfully appropriate

property, by acquiring and otherwise exercising control

over property, namely, workers’ compensation

insurance, of the value of over $20,000.00 and with the

intent to deprive the owner of the property and without

the effective consent of the owner, the Texas Workers

Compensation Assigned Risk Pool, said consent being

induced by deception, namely, said defendants created

and confirmed by words and conduct, a false

impression of fact, not believing it to be true, that was

likely to affect and did affect the judgment of said

owner in the transaction.

In the initial indictment, the State alleged in pertinent

part that the Petitioners acted with the intent to deprive the

owners of the property and without the effective consent of

the owners. Specifically, the State alleged that the owners

were "Houston General Insurance Company and the Texas

Workers Compensation Assigned Risk Pool", and further, the

indictment alleged that the said consent was “inducted by

deception". R.I- 4.

On July 6, 1993, and again on July 28, 1993, the State

sought to amend the indictment, first by altering the word

"inducted" to "induced", and secondly by striking all

reference to "Houston General Insurance Company and” in

the same paragraph of the indictment. R.I- 90, 93.

Both motions were granted by the trial judge, with the

first motion granted on July 6, 1993, and the second granted

on July 28, 1993. R.I- 90, 95.

The instant trial began on August 16, 1993. R.I- 3; R.

"Pretrial Hearing and Voir Dire", 4. During the pre-trial

hearing which was held on the first day of the trial, the State

sought to actually make the amendments to the indictment

which the trial judge had previously authorized. R. "Pretrial

Hearing and Voir Dire", 19-32. The Petitioners objected to

the day-of-trial amendment, however, these objections were

overruled. R. "Pretrial Hearing and Voir Dire", 20-32. The

indictment was thereafter physically altered on its face with

the notations authorized in the Court's orders of July 6, 1993,

and July 28, 1993. R. "Pretrial Hearing and Voir Dire", 20-

32. Thereafter, the Petitioners again objected to the reading

of the amended indictment to the jury. R. II- 48-49.

On appeal to the Court of Appeals of Texas, the

Petitioners raised three points of error regarding the

amendment of the indictment. The Court of Appeals

concluded that the indictment was improperly amended, but

then engaged in what purported to be a harm analysis and,

thereafter, concluded that the error was harmless and

affirmed Petitioners’ convictions (Appendix at A-20-24).

Petitioners requested the Court of Criminal Appeals

of Texas to review the issues on discretionary review

contending that:

1. The Austin Court of Appeals erred in finding that

an amendment of an indictment on the day of trial in violation

of Tex. Code Crim. Proc. Ann. Art. 28.10(C) was subject to

harm analysis.

2. The Austin Court of Appeals erred in failing to

properly apply the applicable case law relating to harm

analysis.

3. The opinion of the Austin Court of Appeals is in

conflict with the trial record.

4. The Austin Court of Appeals, having crafted two

new rules of law, erred in applying them retroactively to the

Petitioners.

The petitions for discretionary review were denied by

the Court of Criminal Appeals on September 13, 1995.

ARGUMENT AND REASONS

FOR ALLOWANCE OF THE WRIT

There are special and important reasons for granting

the writ of certiorari in this case. A convicted citizen’s

federal constitutional rights attendant to an appeal granted by

a State as a matter of right have been guardedly addressed by

this Court. This case presents ex post facto considerations in

addressing whether a State appellate court may craft new

rules of law applicable only to the individual litigants before it

and avoid precedential and Equal Protection implications by

not publishing its decision contrary to its rules of appellate

procedure. This case presents the issue of what notice is due

-10-

to citizens of a State who may rely on long-established,

published appellate court decisions in their trial strategy only

to find that the State appellate system will not follow such

decisions in any given particular case and in doing so not

advise the bench, bar and the citizens of a newly crafted law

or its exception, or, in the terms of the Texas system to

advise whether a case:

establishes a new rule of law, alters or modifies an

existing rule, or applies an existing rule to a novel fact

situation likely to recur in future cases; (2) involves a

legal issue of continuing public interest; (3) criticizes

existing law; or (4) resolves an apparent conflict of

authority.

Petitioners’ lawyers, practicing before a system which relies

largely upon published opinions of intermediate courts of

appeals and the court of last resort in a State, became court-

constrained ineffective in this case when the Court of Appeals

established a new rule of law, and altered and modified an

existing ru’e, while applying an existing rule to a novel fact

situation, to the Petitioners’ detriment.

Petitioners’ Questions should be reviewed by this

Court because the procedur:! ‘xstory of this case presents an

-l1-

important question of federal law which has not been, but

should be, addressed and settled by this Court. Rule

10(1)(c), Supreme Court Rules.

A MENT UN 2

1. Whether the Ex Post Facto clause of the

Constitution prohibits the action of the Texas Court

of Appeals in crafting two new important questions

of state law to the adverse affect of Petitioners in

order to affirm Petitioners’ convictions.

2. Whether Due Process of Law considerations

prohibit the action of the Texas Court of Appeals in

crafting two new important questions of state law to

the adverse affect of Petitioners in order to affirm

Petitioners’ convictions.

Since the Texas Court of Criminal Appeals first

announced the rule in Sodipo v. State, 815 §.W.2d 551 (Tex.

Crim. App. 1990) it has been the clear, unambiguous and

dispositive law in Texas that day of trial amendments are not

authorized in Texas law and that where such amendments are

made, that error is not subject to a harm analysis. See: Bigby

v. State, 892 S.W.2d 864 (Tex. Crim. App. 1994); Miller v.

State, 866 S.W.2d 243 (Tex. Crim. App. 1993); Townsend v.

State, 865 S.W.2d 469 (Tex. Crim. App. 1993); Warmowski

-13-

v. State, 853 S.W.2d 575 (Tex. Crim. App. 1993); Martin v.

State, 851 S.W.2d 275 (Tex. Crim. App. 1993); Rent v. State,

838 S.W.2d 548 (Tex. Crim. App. 1990); Brown v. State,

828 S.W.2d 762 (Tex. Crim. App. 1991); Hillin v. State, 808

S.W.2d 486 (Tex. Crim. App. 1991); Sodipo v. Siate, 815

S.W.2d 551 (Tex. Crim. App. 1990). In fact, every

intermediate appellate court in Texas for the last five years

who has discussed this issue, including the Austin Court of

Appeals, has recognized this plain rule. See: McCoy v. State,

889 S.W.2d 354 (Tex. App. - Hou.[14th Dist.] 1994); Hilton

v. State, 879 S.W.2d 74 (Tex. App. - Hou.[14th Dist.] 1994);

Hinojosa v. State, 875 §.W.2d 339 (Tex. App. - Corpus

Christi, 1994); Wright v. State, 873 S.W.2d 77 (Tex. App. -

Dallas, 1994); Duncan v. State, 850 S.W.2d 813 (Tex. App. -

Hou.[14th Dist.] 1993); Kennerson v. State, 848 S.W.2d 883

(Tex. App. - Hou.[14th Dist.] 1993); Williams v. State, 837

S.W.2d 819 (Tex. App. - Hou. [14th Dist.] 1992); Boutte v.

State, 824 S.W.2d 322 (Tex. App. - Hou.[Ist Dist.] 1992);

Jones v. State, 821 S.W.2d 234 (Tex. App. - Hou.[14th

-13-

Dist.] 1991); Warmowski v. State, 818 S.W.2d 505 (Tex.

App. - San Antonio, 1991). See also: Hood v. State, 828

S.W.2d 87, 95 (Tex. App. - Austin 1992) wherein the Austin

Court recognized that these errors are not subject to harm

analysis. The opinion affirming Petitioners’ convictions in this

case is in conflict with every published Texas Appellate

decision in the last five years which has considered this issue,

including cases out of the Court of Appeals at Austin, Texas.

Petitioners contend that this modification of well-

established Texas law upon which Petitioners relied to their

detriment, constitutes an impermissible Ex Post Facto

application of law. The Ex Post Facto Clause of the United

States Constitution, art. I, Sec. 9, cl. 3, prohibits the

enactment of:

[A]ny law "which imposes a punishment for an act

which was not punishable at the time it was committed;

or imposes additional punishment to that then

prescribed." ... Through this prohibition, the Framers

sought to assure that legislative Acts give fair warning

of the effect and permit individuals to rely on their

meaning until explicitly changed.

-14-

Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 964,

67 L.Ed.2d 17 (1981)(quoting Cummings v. Missouri, 4

Wall. 277, 325- 326, 18 L.Ed. 356 (1867).

For a law to be ex post facto, “it must be

retrospective, that is, it must apply to events occurring before

its enactment, and it must disadvantage the offender affected

by it." Weaver, 450 US. at 29, 101 S.Ct. at 964. See also,

Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d

351 (1987); United States v. Suarez, 911 F.2d 1016 (Sth Cir.

1990). In Suarez, the Fifth Circuit quoted Calder v. Bull, 3

U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798) in summarizing those

laws which the words and the intent of the Ex Post Facto

Clause prohibited:

Every law that aggravates a crime, or makes it greater

than it was, when committed [or] ... that changes the

punishment, and inflicts a greater punishment, than the

law annexed to the crime, when committed [or] ... that

alters the legal rules of evidence, and receives less, or

different testimony, than the law required at the time of

the commission of the offense, in order to convict the

offender. [citations omitted]."

United States v. Suarez, 911 F.2d at 1021. The Fifth Circuit

also said in Suarez, a sentencing guidelines case, that:

-15-

"{FJinding an ex post facto law in this case furthers one

of the purposes behind the constitutional prohibition on

such laws: 'to prevent prosecution and punishment

without fair warning. [Citations omitted] Although the

sentencing statute states that the guidelines to apply are

those ‘in effect on the date the defendant is sentenced,’

18 U.S.C. Sec. 3553(a)(4) & (5), such constructive

notice that the guidelines may change cannot override

the constitutional prohibition against ex post facto laws.

See, Miller, 482 U.S. at 431, 107 S.Ct. at 2451 (‘The

constitutional prohibition against ex post facto laws ;

cannot be avoided merely by adding to a law notice that

it might be changed.'); Rubino, 845 F.2d at 1280 (King,

J., concurring). Suarez is entitled to assume that the

guidelines in effect when she committed her crime

woul ly when she was sentenced." [emphasis

added].

Id. at 1022.

Although the Ex Post Facto Clause expressly restricts

Congress, "[t]he principle embodied in the clause is ...

encompassed in the concept due process and is therefore a

limitation on the power of the other two branches of

government as well." United States v. Brown, 555 F.2d 407,

419 (Sth Cir. 1977), cert. den., 435 U.S. 904, 98 S.Ct. 1448,

55 L.Ed.2d 494 (1978), quoting Marks v. United States, 430

U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977):

The Ex Post Facto Clause is a limitation upon the

powers of the legislature, see Calder v. Bull, 3 Dall.

385, 1 L.Ed. 648 (1798), and does not of its own force

-16-

apply to the Judicial Branch of government. Frank v.

Magnum, 237 U.S. 309, 344, 35 S.Ct. 582, 593, 59

L.Ed. 969 (1915). But the principle on which the

clause is based - the notion that persons have a right to

fair warning of that conduct which will give rise to

criminal penalties - is fundamental to our concept of

constitutional liberty. [citations omitted]. As such, that

right is protected against judicial action by the Due

Process Clause of the Fifth Amendment.

In Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct.

1697, 12 L.Ed.2d 894 (1964), a case involving the cognate

provision of the Fourteenth Amendment, this Court reversed

trespass convictions, finding that they rested on an

unexpected construction of the state trespass statute by the

State Supreme Court:

"{AJ]n unforseeable judicial enlargement of a criminal

statute, applied retroactively, operates precisely like an

ex post facto law such as Art. I, Sec. 10, of the

Constitution forbids... . If a state legislature is barred

by the Ex Post Facto clause from passing such a law, it

must follow that a State Supreme Court is barred by

the Due Process Clause from achieving precisely the

same result by judicial construction." [citation omitted].

430 US. at 192, 97 S.Ct. at 992-993, 51 L.Ed.2d at 260.

Thus, a statute which does not violate the ex post facto clause

on its face nonetheless may be enforced or judicially

construed in a manner violative of the ex post facto clause

it~

and the Fifth Amendment Due Process clause, which the

Appellant contend occurred here, as applied to these

Appellant. Thus, in Bouie, this Court said:

"The basic due process concept involved is the same as

that which the Court has often applied in holding that

an unforseeable and unsupported state-court decision

on a question of state procedure does not constitute an

adequate ground to preclude this Court’s review of a

federal question. [citations omitted]. The standards of

state decisional consistency applicable in judging the

adequacy of a state ground are also applicable, we

think, in determining whether a state court’s

construction of a criminal statute was so unforseeable

as to deprive the defendant of the fair warning to which

the Constitution entitles him. In both situations, ‘a

federal right turns upon the status of the state law as of

a given moment in the past -- or, more exactly, the

appearance to the individual of the status of state law as

of that moment...’ [citation omitted]. When a state

court overrules a consistent line of procedural decisions

with the retroactive effect of denying a litigant a

hearing in a pending case, it thereby deprives him of

due process of law ‘in its primary sense of an

opportunity to be heard and to defend [his] substantive

right. [citation omitted]’”

——P

The decision of the Texas Court of Appeals, in an

unpublished opinion which cannot be _ cited as

authority, alters five years of established Texas case law,

* Rule 90(1), TEX.R.APP.P.

-18-

retroactively only to these Petitioners, by making day of trial

amendments to indictments subject to a harm analysis, and

then applies the new rules to the Petitioners to their

detriment.

On appeal, the Petitioners raised three points of error

regarding the amendment of the indictment. The Austin Court

of Appeals concluded that the indictment was improperly

amended, but then engaged in what purported to be a harm

analysis and, thereafter, concluded that the error was

harmless. Further, the Austin Court concluded that since the

trial court offered the Petitioners the opportunity for a ten

day continuance after the illegal amendment, an offer the

Petitioners declined, the trial court "could have reasonably

inferred that Petitioners were not surprised or unprepared to

respond to the amended indictment." First, whether a trial

court could reasonably infer a law lack of surprise is not the

standard for harm analysis required under Texas law by Tex.

R. App. Pro. 82(B) as authoritatively construed by the Texas

Court of Criminal Appeals in Harris v. State, 790 S.W.2d

-19-

568, 587-88 (Tex. Crim. App.1989) and Arnold v. State, 786

S.W.2d 295, 298 (Tex. Crim. App. 1990).

Texas law contains a clear and unambiguous

statement to the effect of harm in any case and precisely how

that harm is to be addressed on appeal. Specifically, Tex. R.

App. Pro. 81(b)(2) provides that where a case is found to

contain an error, the reviewing court must reverse the

conviction unless it can determine "beyond a reasonable

doubt that the error made no contribution to the conviction

or punishment." In addressing the meaning of this rule, the

Texas Court of Criminal Appeals has held that were error is

detected, there is a "coherent standard for determining when

an error is harmless." Harris v. State, 790 S.W.2d 568, 588

(Tex. Crim. App. 1989). The Court held that there is an

appellate presumption of harm and that the reviewing court

can affirm only when it finds, beyond a reasonable doubt, that

the error in no way contributed to either the conviction or the

sentence. Id. at 588. The Court has, however, established an

exception to this rule and its application: where there is a

-20-

violation of a mandatory statute, harm is presumed. Sodipo

v. State, supra. See also: Brown y. State, 828 S.W.2d 762

(Tex. Crim. App. 1991); Hillin v. State, 808 S.W.2d 486

(Tex. Crim. App. 1991); Roberts v. State, 784 S.W.2d 430,

435 (Tex. Crim. App. 1990) and cases cited therein.

As with the violation of other mandatory statutes, the

instant amendment resulted in the reviewing court not having

a record on the trial on the unamended indictment. The

reviewing court, thus, has no way of intelligently determining

what, if any, effect the amendment would have had on the

jury's deliberations; the court lacks "concrete data from which

an appellate court can meaningfully gauge or quantify the

effect of the error".

In the instant case the Court of Appeals focused

solely on what the trial court might have inferred for from a

refusal to agree to an illegal continuance. Essentially, the

Austin Court of Appeals is holding that a trial court can

permit an unlawful act, then insulate itself from appellate

review by engaging in another a second unlawful act. If the

<2.

accused has the temerity to stand up for his rights, the court

of appeals will turn a blind eye to the trial court's illegal

actions and will determine that as long as the trial court could

engage in an inference of lack of surprise, then there is no

harm shown.

Surprise is simply not the issue. There are mandatory

statutes. Article 28.10 is one. While Tex. R. App. Pro.

81(b)(2) addresses the injury to the Appellant in the instance

were error is committed at trial, there is another injury that

must also be considered: the injury to the Legislature's power

to dictate procedures to be employed in criminal cases.

Legislature has the right and power to order some things

done in all criminal cases. Such is the case with article 28.10.

It is the Legislature's rights that are injured if their

determination to prohibit amendments such as this is not

scrupulously honored. Regardless of the effect of the error on

the Appellant, it is incumbent upon the courts to uphold the

Legislature's clear intent that these kinds of amendments not

be permitted. It was for these reasons that the Court of

-22-

Criminal Appeals has held that violations of art. 28.10 are

not subject to a harm analysis and any violation of that statute

is reversible error per se.

Nor should an accused be put to a choice of rights.

The Petitioners in this case had the right to prohibit the State

from making a day of trial amendment to the indictment and

they had a right to proceed to trial on that date without

accepting an unwanted continuance. The record adequately

reflects the Petitioners’ reasoning for both why they did not

want a continuance and why they would be harmed if the

amendments were permitted. It is not up to an intermediate

appellate court, when confronted with clear violations of

statutes, to suggest that as long as the trial court can infer

some alternative reasoning then the accused isn't harmed.

Under Texas law existing at the time of Petitioners’

trial, amendments to the indictment made on the day of trial,

even "if prior to the commencement of jury selection,

constitutes reversible error". Sodipo v. State, 815 S.W.2d 551

(Tex. Crim. App. 1991) (opinion on rehearing); Brown vy.

ih

State, 828 S.W.2d 762 (Tex. Crim. App. 1991). Petitioners

contend that applying due process considerations, the Ex Post

Facto clause of the Constitution prohibits the action of the

Texas Court of Appeals in crafting two new important

questions of state law to the adverse affect of Petitioners in

order to affirm Petitioners’ convictions.

ARGUMENT UNDER

QUESTION 3

3. Whether the Court of Appeals’ decision,

which crafted two new important questions

of state law to the adverse effect of

Petitioners, violates the Petitioners’ Sixth

Amendment right to the _ effective

Assistance of Counsel for their defense.

At the time the State sought to amend the indictment,

and during the course of Petitioners’ objections to the

physical interlineation of the indictment, Petitioners’ trial

counsel articulated the harm in allowing the indictment to be

physically altered on the day of trial, as follows. At the pre-

trial hearing on the date the trial began, August 16, 1993, the

prosecutor advised the trial court that "We need to

interiineate the indictment. The Court of Criminal Appeals

-24-

el

has ordered us to, Judge." (Pre-Trial Hearing & Voir Dire,

20). At the time of the proffered interlineation, the

indictment still said "inducted" as opposed to "induced".

(Pre-Trial Hearing & Voir Dire, 22). Citing Ward v. Siate,

supra, trial counsel for Petitioners objected to the physical

altering of the indictment stating:

"[Mr. Anderson]: The change from ‘inducted’ to

‘induced’ constitutes a substantial detriment to the

Defendants because, as the indictment is sitting right

now, it does not charge a violation of the state law. If

the Court allows them to change ‘inducted’ to ‘induced,

it then constitutes an offense.(Pre-Trial Hearing & Voir

Dire, 23)

MR. SAWYER: The problem is that Ward sets out a

three-step process and the burden is on the State of

Texas. The burden is to introduce a motion, get a

ruling that is favorable and then secure the

interlineation. What the State wants to do today on the

day of trial is say hey, we didn't meet the obligation and

we didn't do it.

The Defense is under no obligation to go over and say

to the State of Texas hey, you haven't done your work.

... (Pre-Trial Hearing & Voir Dire, 24)

Now, I will say on the record for Defendant Newsom

yes, I know they haven't carried out the third step

[interlineation] and that is the same burden that they

have before or during trial. They didn't get it done.

The changes today means that turns what is clearly not

cognizable under the Penal Code into an offense. We

-25-

relied on it. It may be to the detriment of the State of

Texas, but Ward speaks straight to it. They have never

interlineated.

We object because we would be substantially harmed

on the date of trial in that the State of Texas would

have, against statute, been allowed to interlineate so as

to substantially impair our ability to go forward. And it

is the State's burden, Your Honor. They just didn't

meet it. (Pre-Trial Hearing & Voir Dire, 25).

[Mr. Sawyer]: We continue to object under 28.10 and

the applicable provision of the Texas State Constitution

to an amendment that results in the loss of substantial

right running to Mr. Newsom in that the Defendant

Newsom believes that prior to today's interlineation,

Paragraph | did not state an offense cognizable under

the Texas Penal Code.

However, being respectful to the Court's order, the

Defendants will not request a continuance.

[Mr. Anderson]: Yes, Judge, could the record reflect

that this is August the 16th at 10:30, the date this case

was previously set for trial and the date the

interlineation is going to occur and that Defendant Wolf

joins in all the objections voiced earlier by Mr. Sawyer

and would add that the applicable provision of the

Texas Constitution are [sic] Article 1, Section 10. He

is being denied substantial rights under that.

Defendant Wolf also believes that the charging

instrument has failed to state an offense until the

interlineation takes place. That it is a substantial

depravation [sic] of his rights to allow this amendment

on the date of trial and the Defendant persists in his

objections under 28.10 and Article 1, Section 10 of the

Texas Constitution.

t-

And Defendant Wolf declines at this time to ask for a

continuance and would point out to the Court that this

is an engaging in organized criminal activity indictment

and it has alleged three manner and means in the

offense taking place and that the other two manner in

[sic] mearis are in tact as they were indicted, even if the

interlineation was allowed. (Pre-Trial Hearing & Voir

Dire, 29-30).

The harm in permitting a day of trial amendment is

evident in the fact that Petitionez's counsel were relying on

the failure of the State to properly amend so as to charge an

offense against Petitioners in their preparation for defense of

the Petitioners. The law clearly prohibited such amendments

and the Petitioners were within their rights to base their

defense on the fact that the State, under the unamended

indictment, could never establish an offense against the laws

of the State of Texas. Such reliance on the law of this State

at the time of trial, and the trial court's allowance of the

amendment to charge a crime, was harmful to Petitioners

since it permitted the State to obtain a conviction on the basis

of a theory not initially pled.

24~

The standard for judging whether an accused receives

the Effective Assistance of Counsel in the class of cases that

present claims of “actual ineffectiveness” is governed by

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). Petitioners contend that the decision of

the Court of Appeals amounts to government constrained and

imposed ineffectiveness of Petitioner’s counsel under the

Sixth Amendment to the United States Constitution.

Petitioners’ counsel were the only participants at the trial of

this case that attempted to follow the long-established law of

this state with reference to amending the indictment and they

relied upon such law in vigorously defending their clients.

The prosecutors urged the trial judge to disregard established

law. Petitioners’ attorneys cited the law of the State of Texas

at the time and urged the trial judge to follow that established

law. The trial judge declined to follow the law. On appeal,

the Court of Appeals made new law, contrary to established,

published opinions constituting the law of the State of Texas

and refused to publish its decision. This refusal to publish the

opinion creates a one-case exception to the established law

applicable only to these Appellant. The law in Texas did not

change; it merely was not applied to these Appellant.

Petitioners were deprived the effective assistance of

counsel by reason of the change in the well-established law of

Texas, applicable only to these Appellant, and sanctioned by

the Court of Criminal Appeals in its refusal to correct this

error of law.

CONCLUSION

For these various reasons, this petition for certiorari

should be granted. Petitioners pray that the Petition for Writ

of Certiorari be granted and that upon full consideration the

Court reverse the decision of the Texas Court of Appeals,

Third Supreme Judicial District at Austin, with instructions

that Petitioners be granted a new trial.

December 11, 1995.

-29-

AMES M. MURPHY .

TEXAS BAR NO. 14700800

P. O. BOX 140809

DALLAS, TEXAS 75214

214-745-1532

Counsel for Petitioners

-30-

eee

NO

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1995

GARY NEWSOM

and

JEROME WOLF,

Petitioners,

vs.

THE STATE OF TEXAS,

Respondent.

APPENDIX

ON PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF TEXAS

THIRD SUPREME JUDICIAL DISTRICT

AT AUSTIN, TEXAS

Counsel for Petitioners:

JAMES M. MURPHY

Texas State Bar # 14700800

P.O. Box 140809

Dallas, Texas 75214

214-745-1532 (Telephone)

214-824-8021 (Facsimile)

December 11, 1995

IN THE COURT OF APPEALS, THIRD DISTRICT OF

TEXAS AT AUSTIN

JUDGMENT RENDERED MAY 17, 1995

NO. 03-93-00675-CR

JEROME WOLFE V. THE STATE OF TEXAS

APPEAL FROM 167TH DISTRICT COURT OF

TRAVIS COUNTY

BEFORE CHIEF JUSTICE CARROLL, AND ABOUSSIE

AND DAVIS

AFFIRMED - OPINION BY JUSTICE DAVIS

THIS CAUSE came on to be heard on the transcript of the

record of the court below, and the same being considered,

because it is the opinion of this Court that there was no error

in the judgment: IT IS ORDERED, ADJUDGED and

DECREED by the Court that the judgment be in all things

affirmed; that the appellant pay all costs relating to this

| appeal; and that this decision be certified below for

observance.

IN THE COURT OF APPEALS, THIRD DISTRICT OF

TEXAS AT AUSTIN

JUDGMENT RENDERED MAY 17, 1995

NO. 03-93-00678-CR

GARY NEWSOME V. THE STATE OF TEXAS

APPEAL FROM 167TH DISTRICT COURT OF

TRAVIS COUNTY

BEFORE CHIEF JUSTICE CARROLL, AND ABOUSSIE

AND DAVIS

AFFIRMED - OPINION BY JUSTICE DAVIS

THIS CAUSE came on to be heard on the transcript of the

record of the court below, and the same being considered,

because it is the opinion of this Court that there was no error

in the judgment: IT IS ORDERED, ADJUDGED and

DECREED by the Court that the judgment be in all things

affirmed; that the appellant pay all costs relating to this

appeal; and that this decision be certified below for

observance.

TEXAS COURT OF APPEALS, THIRD DISTRICT

AT AUSTIN

NO. 03-93-00675-CR

Jerome Wolf, Appellant

v.

The State of Texas, Appellee

AND

NO. 03-93-00678-CR

Gary Newsome’ , Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS

COUNTY, 167TH JUDICIAL DISTRICT NO. 0932962,

HONORABLE LARRY FULLER, JUDGE PRESIDING

After finding appellants Wolf and Newsome guilty of

engaging in organized criminal activity, Tex. Penal Code Ann.

Sec. 71.02 (West 1994), the jury assessed Wolf's punishment

' [Appellant’s Note: Gary Newsom’s name is misspelled

throughout this opinion. The opinion is reproduced with

such misspellings. }

A-3

at confinement for ten years and a fine of ten thousand

dollars, and Newsome's punishment at confinement for five

years. Appellants assert nine points of error, contending the

trial court erred by: (1) granting the State's motion to amend

the indictments the day of trial; (2) granting the State's

motion to amend the indictments to change the manner and

means of the offense, (3) finding no fatal variance between

the indictments and the proof, (4) finding the evidence

sufficient to show ownership of the property; (5) finding the

evidence sufficient to support the conviction; (6) admitting

State's Exhibits 1 through 98 over timely objections by

appellants; (7) admitting State's Exhibits 99 through 113 over

appellants’ timely objections, (8) denying Wolf's motion for

mistrial after the prosecutor commented on his failure to

testify; and (9) finding the evidence sufficient to show the

value of the property. We will overrule appellants’ points of

error and affirm the judgments of the trial court.

Appellants were convicted under the first count in the

indictments providing in pertinent part that appellants:

A-4

with intent to establish and maintain and

participate in a combination and in the profits of

a combination consisting of [appellants], Pat

Fry, [and] David Williams, did commit the

following offenses pursuant to a continuing

course of conduct:

On or about the 8th day of March, 1990, in the

County of Travis and State of Texas, Pat Fry

and David Williams and defendants Gary

Newsome and Jerome Wolf did then and there

unlawfully appropriate property, by acquiring

and otherwise exercising control over property,

namely, workers’ compensation insurance, of

the value of over $20,000.00 and with the intent

to deprive the owner of the property and

without the effective consent of the owner, the

Texas Workers Compensation Assigned Risk

Pool, said consent being induced by deception,

namely, said defendants created and confirmed

by words and conduct, a false impression of

fact, not believing it to be true, that was likely

to affect and did affect the judgment of said

owner in the transaction.

Appellants operated Metro Financial Group, Inc., d/b/a

ATS, Inc. ("ATS") in Oklahoma City. ATS was engaged in

"employee leasing," a concept in which businesses terminate

their employees, who are then hired by a leasing company.

The leasing company then leases the services of the

employees to their original employers for a service fee. The

A-5

original employer pays salaries, insurance, and benefits in

addition to the service fee. The arrangement results in savings

for the original employer in workers’ compensation insurance

and other insurance costs incidental to employee coverage.

Anyone seeking workers’ compensation insurance

coverage in Texas who is unable to secure it in the voluntary

market may apply through the Texas Workers’ Compensation

Assigned Risk Pool (the "Pool"). If the Pool decides to bind

the risk, the Pool assigns the risk to one of the servicing

companies. Upon request from the insured, the servicing

company issues certificates of insurance. It is the servicing

company's responsibility under its contract with the Pool to

issue the policy, to collect the premiums and to handle and

pay claims. The amount of premium is based on the payroll.

The insured is obligated to send payroll reports to the

servicing company. Pursuant to its contract with the Pool, the

servicing company sends auditors to review the payroll

records of the insured at the end of the policy period.

A-6

The Pool must write workers’ compensation insurance

for companies that are unable to secure it through the

voluntary market. The Pool is ultimately responsible for

paying claims and absorbing losses. If the Pool suffers a net

underwriting loss in a year, it assesses all member companies

based on a pro rata basis of their market share. Losses that

are paid by a servicing company are reimbursed by the Pool.

At the outset, we will consider appellants’ points of

error challenging the sufficiency of the evidence to support

the convictions. In their fifth point of error, appellants

contend that there is an absence of evidence to show that

appellants intended to unlawfully appropriate the property at

the time of taking thereof.

When reviewing a challenge to the sufficiency of the

evidence to support a conviction, an appellate court must

determine whether, viewing the evidence in the light most

favorable to the conviction, any rational trier of fact could

have found the essential elements of the offense beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19

A-7

(1979), Butier v. State, 769 $.W.2d 234, 239 (Tex. Crim.

App. 1989). A reviewing court should not substitute its

determination of guilt for that of the fact finder unless it is

found to be irrational or unsupported by the evidence, such

evidence being viewed under the standard set forth in

Jackson. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim.

App. 1988). "[I]t is enough that the conclusion of guilt is

warranted by the combined and cumulative force of all the

incriminating circumstances." Brandley v. State, 691 S.W.2d

699, 703 (Tex. Crim. App. 1985).

ATS, an employee leasing company with headquarters

in Oklahoma City and doing business in Texas, submitted an

application to the Pool on January 31, 1989, requesting

workers’ compensation insurance. At that time, Newsome

was president of ATS, and Wolf was chief financial officer

and CPA of ATS. The application to the Pool was signed by

Patricia Fry as vice-president of ATS.

Fry testified that a number of representations in the

application were incorrect. Fry, a sales representative for

A-8

OO

ATS, stated that she did not know that she was ever a vice-

president of ATS. The application listed the location of all

"factories, shops, yards, buildings, premises or other work

places" of ATS as an address in Colleyville, Texas, an address

Fry stated was her personal residence. The statements in the

application about the business buildings and workplaces being

located at the Colleyville address were false, ATS having

headquarters in Oklahoma City. Fry testified that Newsome

called her and asked that she sign the application, stating "I

was there and he wasn't. It was just a matter of convenience."

Pursuant to the applicant's expressed preference, the Pool

assigned Houston General Insurance Company as servicing

carrier, effective February |, 1989.

David Williams, a sales person for ATS, testified he

probably sold leasing agreements in Texas in 1989, John

Barbour Trucking being his first account. Williams sent

requests from the Oklahoma City office to Houston General

for certificates of insurance for its leasing clients. After

Houston General refused to provide the certificates because

A-9

the request did not come from an executive officer, Newsome

advised Houston General in a letter, dated August 28, 1989,

that Williams was an executive vice-president of ATS.

Williams denied ever being an executive vice-president of

ATS. Williams requested numerous certificates of insurance,

which Houston General issued. Williams explained that

certificates of insurance show that employees are covered and

that the amount of payroll of ATS's client companies is a

factor in determining the premium.

The Pool directed ATS to report its payroll on a

monthly basis. Madge Wenzell, medical claims adjuster for

Houston General, identified letters she sent ATS in April,

July, and September 1989, asking for payroll information and

threatening to cancel the policy if the information was not

received. Wenzell received a letter, dated July 1, 1989, from

Wolf stating, "[W]e are still attempting to book some

business in the State of Texas -- however to date we have no

payrolls to be covered by the subject policy." Leasing

agreements with Texas companies, beginning in January

A-10

1989, were shown to have been executed by ATS prior to the

date of Wolf's letter. Houston General received payroll

reports signed by Wolf for the months of July through

December 1989, which showed no employees and no payroll.

Representatives of Barbour Trucking Company,

Thrasher Trucking Company, Big Mack Trucking Company,

Patterson Drilling Company, Chem-Pac, Snyder Well

Servicing, Patterson Petroleum, Bource Services, B.W.

Fabricators and Questor Drilling testified that they had

contracted with ATS for employee leasing services, all

agreements signed on behalf of ATS by either Newsome or

Wolf. Jerry Gill and Michelle Gill testified that they worked

under the supervision of Wolf at ATS in 1989. They stated

that they received payroll reports from the above named

companies and entered the reports in the ATS computers.

Kim Broom, senior payroll analyst for Houston

General, testified that she became concerned and called Kay

Hamblin at the Pool to report that ATS had an "extremely

active file for certificate holders as well as alternate employer

A-l1

endorsements and the insurer had reported no payroll for any

employees for any reason.” John Guy testified that he was in

charge of insurance, accounting and financial operations for

Questor Drilling in 1989. Guy signed a lease agreement on

behalf of Questor with ATS, represented by Wolf, on

December 10, 1989. Guy notified the Pool to report that

Questor's employees were covered by Houston General,

effective December 16, 1989. Questor paid ATS to cover its

payroll, insurance and other costs under the contract. Guy

became concerned after learning that the company's

December payroll had not been reported by ATS. After Guy

called Wolf about the failure of ATS to file a report, Wolf

filed an amended report for December that only listed the

payroll of Questor Drilling. A letter accompanied the report

stating that he (Wolf) was unaware that a salesman had sold

some business. The amount of premium based on the payroll

report was $33,069.

Kelly Crowell, an employee of a firm doing insurance

premium auditing, was contacted by Houston General to

A-12

audit ATS to determine whether they had correctly reported

their payroll throughout the policy period. After being

contacted, Wolf told Crowell that he needed two weeks, and

Crowell agreed to this request. At the expiration of two

weeks, Crowell attempted to contact Wolf to no avail.

Despite personally going to Wolf's office in Oklahoma City

on March 8, 1990, Crowell testified that he was never able to

see or make further contact with Wolf. Crowell stated that he

abandoned his efforts to conduct the audit because of ATS's

failure to cooperate.

Alton Head, manager of the premium audit

department at Houston General, testified that he was "finally"

able to talk to Wolf on April 25, 1990, at which time Wolf

stated that he would agree to an audit after a hearing on a

temporary restraining order on May 7. Wolf advised Head

that he would call him. Head related that Wolf never called

him. Head advised the Pool that Houston General was unable

to audit ATS because of ATS's refusal to make records

available. Gina Hawkins, a Pool employee, testified that the

A-13

Pool would not insure an applicant if the Pool knew that the

applicant was not going to submit payroll reports, fail to pay

premiums and refuse to submit to an audit.

Appellants point to the indictments that allege that the

offense occurred "on or about March 8, 1990,” and note that

their application was filed on February 2, 1989. Appellants

contend that there is a total absence of evidence that

appellants intended to unlawfully appropriate property at the

alleged date. Where an “on or about" date is alleged as the

date of the commission of the offense, a conviction may be

had upon proof that the offense was committed any time prior

to the return of that indictment that is within the limitation

period. Ex Parte Hyett, 610 S.W.2d 787, 789 (Tex. Crim.

App. 1981). The limitations period for engaging in organized

crime is the same as that of the most serious offense that is

the object of the activity. Tex. Code Crim. Proc. Ann. art.

12.03(b) (West Supp. 1995). The most serious offense in the

present case is theft, and the limitation period for theft is five

years. Tex. Code Crim. Proc. ann. art. 12.01 (West Supp.

A-14

1985). The State thus clearly proved that the alleged offense

occurred within the limitation period.

Appellants rely on cases holding that a failure to

perform the promise in issue without other evidence of intent

or knowledge is not sufficient proof that the accused did not

intend to perform or knew that the promise would not be

performed. See Peterson v. State, 645 S.W.2d 807, 811 (Tex.

Crim. App. 1983); Phillips v. State, 640 S.W.2d 293, 294

(Tex. Crim. App. 1982); Stockman v. State, 826 S.W 2d 627,

636 (Tex. App.-Dallas 1992, pet. ref'd); Cox v. State, 658

S.W.2d 668, 670-71 (Tex. App.-Dallas 1983, pet. re'fd). A

common thread in these cases was the State's reliance on the

accuseds' failure to fully complete construction pursuant to

the terms of the contracts. Peterson, Stockman, Phillips and

Cox held that a showing that the accused had not fully

performed his obligation under the contractual agreement,

standing alone, was insufficient to show that payments were

obtained by deception.

A-15

In the instant cause, appellants’ initial application to

the Pool was fraught with misrepresentations. The

applications for certificates of insurance were made by a

person who was falsely represented to be an executive officer

of the Pool. Payroll reports were listed as zero after lease

agreements had been made with companies who had reported

payrolls and made premium payments. Houston General

found it impossible to obtain appellants’ cooperation for an

audit. Thus, the deception that began with the initial

application to the Pool continued throughout the entire series

of transactions. Viewing the evidence in the light most

favorable to the verdicts, we hold that a rational trier of fact

could have found that there was sufficient evidence of intent

to support the verdict. Appellants’ fifth point of error is

overruled.

In their fourth point of error, appellants assert that the

evidence is insufficient to show that the Pool was the owner

of the property appropriated. "Owner" is defined as a person

who “has title to the property, possession of the property,

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whether lawful or not, or a greater right to possession of the

property than the actor." Tex. Penal Code Ann. Sec.

1.07(a)(35)(A) (West 1994). The trial court tracked this

definition of "owner" in its charge to the jury. Appellants urge

that the Pool never services any policy, never writes any

policy, and never pays any claims. While the Pool may obtain

a copy of the policy for its files, appellants urge that it has no

legal title to the policy.

At the outset, it should be noted that appellants were

charged with the theft of workers’ compensation insurance

rather than an insurance policy. It is undisputed that the only

way appellants could obtain workers’ compensation insurance

was by making application to the Pool. The Pool underwrites

the application, binds insurance coverage and assign a

servicing company. The servicing company issues the policy,

collects premiums, provides loss control services, pays claims

and performs audits. While it is ultimately reimbursed by

member companies, the Pool has the responsibility for paying

claims and absorbing losses. At the very least, the Pool stands

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in an agency or broker relationship with the servicing

companies. The duties performed by the Pool in accepting

applications, binding coverage, assigning it to a servicing

company and paying losses provide probative evidence that

the Pool exercises a degree of management and control over

the insurance. Viewing the evidence in the light most

favorable to the verdict, we hold that a rational trier of fact

could have found that there was sufficient evidence to

support a finding that the Pool had a greater right of

possession to the insurance than persons who obtained it by

deception. Appellants’ fourth point of error is overruled.

In their ninth point of error, appellants assert that the

evidence is insufficient to show the value of the property. The

indictments charged that appellants "did then and there

unlawfully appropriate property, by acquiring and otherwise

exercising control over property, namely workers’

compensation insurance, of the value of over $20,000 . - - -’

Appellants urge that the contract or policy was never

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introduced at trial and that there was never an audit

performance on the contract of insurance.

Appellants were charged with the theft of insurance.

We are persuaded that insurance is "intangible personal

property" capable of being stolen. See Tex. Penal Code Ann.

Sec. 31.01(5)(B) (West 1994). The trial court held that Pool

employee Gina Hawkins was an expert witness in calculating

premiums from payroll and worker classification. Hawkins

used invoices ATS had sent to companies with which it had

leasing agreements to determine worker classification and

payroll in calculating the premiums. Hawkins testified that the

total premiums due for payrolls of the seven client companies

was $215,452. Guy of Questor Drilling testified that the

premium due for his company in January 1990 would have

been in excess of $30,000. ATS did not report any payroll or

employees for the month of January 1990. We find no merit

in appellants’ argument that the date the insurance was

appropriated was not shown. Clearly, the appropriation was

within the limitation period. We hold that a rational trier of

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fact could have found beyond a reasonable doubt that there

was sufficient evidence to support the value element of the

offense. Appellants’ ninth point of error is overruled.

In their first point of error, appellants contend that the

trial court erred in granting the State's motion to amend the

indictments where they alleged that consent was "inducted"

by deception by replacing the word "inducted" with the word

"induced." The trial court granted the State's motion to

amend at a pretrial hearing on July 6, 1993. The physical act

of deleting the letter "t" to change the word "inducted" to the

word "induced" did not occur until August 16, 1993 at a

pretrial hearing on the first day of trial. The trial court

overruled appellants’ objection to the trial court's permitting

the physical act of amending the indictment on the first day of

the trial. The trial court offered appellants a continuance,

which appellants declined. Article 28.10 of the Code of

Criminal Procedure provides:

(a) After notice to the defendant, a matter of

form or substance in an indictment or

information may be amended at any time

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EE

before the date the trial on the merits

commences. On the request of the defendant,

the court shall allow the defendant not less

than 10 days, or a shorter period if requested

by the defendant, to respond to the amended

indictment or information.

(b) A matter of form or substance in an

indictment or information may also be

amended after the trial on the merits

commences if the defendant does not object.

(c) An indictment or information may not be

amended over the defendant's objection as to

form or substance if the amended indictment

or information charges the defendant with an

additional or different offense or if the

substantial rights of the defendant are

prejudiced.

Tex. Code Crim. Proc. Ann. art. 28.10 (West 1989).

In Ward v. State, 829 S.W.2d 787 (Tex. Crim. App.

1992), cited by appellants, the court held that notice of an

amendment must come from the face of the indictment, not a

trial court order authorizing the amendment. /d. at 794. In

Sodipo v. State, 815 S.W.2d 551 (Tex. Crim. App. 1991),

relied on by appellants, the State sought to amend the

indictment on the first day of trial by changing an

enhancement paragraph cause number and the defendant's

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objection and request for a ten-day continuance were

overruled by the trial court. The court held that the harmless

error analysis under Texas Rules of Appellate Procedure 81

(b)(2) should not be applied to the ten day continuance rule.

Id. at 556

Unlike Sodipo, the trial court in the instant cause

offered appellants a ten-day continuance to respond to the

amended indictment. In Ward, unlike the instant cause, the

State did not physically amend the indictment despite the trial

court's order authorizing the State to amend the name of the

complaining witness from "Steve Holler" to "Steve Scott."

The Sodipo court specifically noted that it was not deciding

that all "mandatory" statutes are immune for the harmless

error analysis, stating:

We do find that provisions such as the ten day

requirement found in Art. 28.10(a) cannot be

subjected to a harm analysis in any meaningful

manner, because the record will not reveal any

concrete data from which an appellate court

can meaningfully gauge or quantify the effect

of the error.

Id. at 554.

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Assuming that the trial court erred by overruling

appellants’ objection, the instant cause contains data from

which we can "meaningfully gauge or quantify the effect of

the error." While the order allowing the amendment, granted

well in advance of trial, did not serve as the physical

amendment, the trial court could have reasonably inferred

that appellants were not surprised or unprepared to respond

to the amended indictments when they declined the trial

court's offer of a continuance. We hold beyond a reasonable

doubt that any error the trial court made in allowing the

amendment made no contribution to the conviction or the

punishment. Appellants’ first point of error is overruled.

In their second point of error, appellants urge that the

trial court's action in granting the State's motion to amend the

indictments prejudiced appellants substantial rights. We find

our disposition of appellants’ first point of error dispositive of

this contention. Appellants’ second point of error is

overruled.

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In their third point of error, appellants assert that

there is a fatal variance between the indictments and the proof

at trial because there is no evidence that appellants "inducted”

consent by deception. The indictments in the instant cause

were amended by deleting the letter "t" in order to reflect the

word "induced." Thus, the State was under no burden to

prove that consent was "inducted" by deception. Moreover,

the Court of Criminal Appeals has recently stated that not

every variance between the evidence at trial and the

indictment is fatal. Stevens v. State, 891 S.W.2d 649, 650

(Tex. Crim. App. 1995). The court cited earlier cases that

had held that the defendant had the burden to show that he

was surprised or prejudiced. See Human v. State, 749

S.W.2d 832 (Tex. Crim. App. 1988); Plessinger v. State, 536

S.W.2d 380 (Tex. Crim. App. 1976). We find no merit in

appellants’ contention that the holding in Stevens is

prospective. Assuming there had been a variance in the

instant cause, the appellants have not shown surprise or

prejudice. Appellants’ third ground of error is overruled.

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In their sixth and seventh points of error, appellants

urge that the trial court erred in admitting State's Exhibits |

through 98 and Exhibits 99 through 113 as business records

of Houston General Insurance Company. Appellants contend

that the records were inadmissible because: (1) the business

records affidavits and the required notice are faulty; (2) the

records were prepared in anticipation of litigation; (3)

appellants were not afforded the right of confrontation under

the United States Constitution and the Texas Constitution;

and (4) the records contain hearsay within hearsay and lack

trustworthiness.

The affidavits, signed by Norma Normad and Robert

Gripp as custodians of the business records of Houston

General Insurance Company, track the affidavit form set out

in Rule 902(10)(b) of the Rules of Criminal Evidence. Tex. R.

Crim. Evid. 902(10(b). The affidavits omit the number of

pages contained in the records. Both affiants testified at trial.

Rule 902(10)(b) provides that "an affidavit that substantially

complies with the provisions of this rule shall suffice." Id. In

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Petrick v. State, 832 S.W.2d 767 (Tex. App.-Houston [lst

Dist.] 1992, pet. ref'd), the court rejected the defendant's

claim that there had not been substantial compliance where

there was a discrepancy in the number of documents and

pages listed. /d. at 772-73. The affidavits refer to the "records

attached hereto." We hold that the trial court in the instant

cause did not abuse its discretion in finding substantial

compliance with Rule 902.

Appellants urge that they were not given proper

notice of the filing of the affidavits and the business records

because the notice did not identify the name and employer to

which the affidavits applied. Rule 902(10)(a) provides that

the "notice shall identify the name and the employer, if any, of

the person making the affidavit." Tex. R. Crim. Evid.

902(10)(a). The affiants in the instant cause were identified as

"custodians of business records for Houston General

Insurance Company." We perceive no error where as in the

instant cause the word "employer" is omitted, when the clear

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import of the language used leaves no doubt about the

identity of the affiants' employer.

Appellants claim the business records were prepared

in anticipation of litigation. Appellants’ contention is not

supported by a condensed statement of facts showing how

the records in the instant cause were prepared in anticipation

of litigation nor do appellants cite pages in the record where

the matter complained of is to be found, as required by Rule

74 of the Texas Rules of Appellate Procedure. See Tex. R.

App. P. 74(d), (f); Petrick, 832 S.W.2d at 773. Appellants

generally allege that the records were prepared in anticipation

of litigation without discussing how the authorities they cite

apply to the instant cause. Thus, they have not properly

presented this argument for review.

Appellants’ contention that they were denied the right

to confrontation and cross-examination under the United

States Constitution and Texas Constitution is generally

alleged without any reference to any place in the record

where these objections were voiced in the trial court. See Tex

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R. App. P. 74(d). Applicable to this contention, as well as

appellants’ claim that the records lack an indicia of reliability,

is Rule 803(6) of the Rules of Criminal Evidence which

provides that records that comply with Rule 902(10) are

admissible without regard to the availability of the declarant

"unless the source of information or the method or

circumstances of preparation § indicate lack of

trustworthiness." Tex. R. Crim. Evid. 803(b). Appellants

have failed to show how the business records in question lack

trustworthiness. Appellants’ sixth and seventh points of error

are overruled

In the eighth point of error, appellant Wolf asserts

that the trial court erred in overruling his motion for mistrial

after the prosecutor commented on his failure to testify. As

we will show, appellant Newsome expressly disassociated

himself from the motion. the following occurred during the

State's closing argument at the guilt/innocence phase of the

trial:

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MS. KEY [Prosecutor]: Moreover, ladies and

gentlemen, Jerome Wolf continues on his scam

getting free workers’ compensation

insurance and he gets caught. And he gets

caught when John Guy finds out, as you

remember his testimony, when John Guy says

hey, boys, I had insurance with Houston

General and I found out from Ms. Kay

Hamblin that my premium has not been paid

for the month of December.

You have that letter from Mr. Guy in evidence

before you. The letter he wrote to the Pool

saying hey, I'm covered by Houston General

under this policy number. So he calls as he

testified. He calls up to Oklahoma City and he

says hey, where is my premium report. I want

my men covered. And Jerome Wolf says oh, I

forgot. He files an amended payroll report,

ladies and gentlemen.......... He says to

Questor Drilling okay, I'll file it. Because

John Guy is breathing down their neck, he files

a December report saying oh, yeah we owed

you $33,000 and he attaches a letter saying

oh, I'm sorry; when I filed the December 1989

report saying I had no payroll therefore no

premium, I didn't know we had any business.

Houston General received this in January of

90.

Well ladies and gentlemen, guess who signed

the Questor Drilling lease agreement in

December of 1989. Jerome Wolf Jerome

Wolf knew that he had business. He's lying

through his lawyer. It is not true.

MR. SAWYER [Counsel for Newsome]: That

is it. That is a comment on the failure of the

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Defendant to testify. She knows it, it is back

door; I object.

THE COURT: I sustain the objection. The

Court instructs you not to concern yourself

and disregard the last regard [sic].

MR. ANDERSON [counsel for Wolf]: Judge,

wait I am not done. On behalf of Defendant

Jerome Wolf I move for a mistrial because of

her comment on the failure of the Defendant

to testify.

MR. SAWYER: On behalf of Defendant

Newsom we will not move for a mistrial under

any circumstances.

THE COURT: Overruled, Mr. Anderson.

The failure of a defendant to testify shall not be taken

as a circumstance against him, nor shall the same be alluded

to or commented on by counsel in the cause. Tex. Code

Crim. Proc. Ann. art. 38.08 (West 1979). The standard to be

used in determining whether prosecutorial comment violates

Article 38.08 is set forth in Dickinson v. State, 685 $.W.2d

320 (Tex. Crim. App. 1984):

It is now well settled in this State that for the

argument or comment of the prosecuting

attorney to offend against Art. 38.08, supra,

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the language used must be looked to from the

standpoint of the jury, and the implication that

the language used had reference to the

accused's failure to testify must be a necessary

one. It is not sufficient that the language used

might be construed as an implied or indirect

allusion thereto. The test employed is whether

the language used was manifestly intended or

was of such character that the jury would

naturally and necessarily take it to be comment

on the accused's failure to testify. Of course, in

applying this test, the facts and circumstances

of each case must be analyzed to determine

whether the language used was of such

character.

Id. at 323 (citations omitted).

The argument that Wolf lied in his letter to Houston

General by stating "I didn't know we had any business" was a

reasonable deduction from the evidence that showed that

Wolf had earlier signed a lease agreement with Questor

Drilling. Under these circumstances, the language was not of

such character that the jury would naturally and necessarily

take it to be a comment on appellant's failure to testify.

Moreover, prior to the complained of argument, the

prosecutor had argued, without objection, that appellant had

lied when he wrote Houston General a letter on July 1, 1989

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that he would advise them when they signed up anyone

"because on May 20, 1989, Jerome Wolf signed a leasing

agreement with Thrasher Trucking." To be timely, an

objection must be raised at the earliest opportunity. See

Johnson v. State, 803 $.W.2d 272, 291 Tex. Crim. App

1990), cert. denied, 111 S. Ct. 2914 (1991)

While no objection was raised in the trial court that

the prosecutor was striking at appellant over his counsel's

shoulders, an argument that accuses defense counsel of

improper argument cannot be condoned. See Gomez v. Siate,

704 S.W.2d 770, 772-73 (Tex. Crim. App. 1985). Since

defense counsel did not voice this objection at trial, reversal

will result on appeal only if the comment was so prejudicial

that an instruction to disregard could not have cured the

harm. Wilkerson v. State, 881 S.W.2d 321, 328 (Tex. Crim.

App. 1994). Defense counsel had earlier stated that the

prosecution and the insurance industry were "allies" and that

"the State would rather lose count two than even remotely

touch the truth of the matter." The protection afforded

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defense counsel against charges of improper conduct "does

not create a sanctuary to which defense counsel may retreat

with immunity and thereby deny the prosecutor the right to

reply to defense counsel's argument." Fegurgur v. State, 734

S.W.2d 103, 106 (Tex. App.-Austin 1987, no pet.).

Assuming that the prosecutor's argument can be construed as

striking over his counsel's shoulders, we hold that de trial

court's instruction to disregard cured any improper argument.

Appellant Wolf's eighth point of error is overruled.

The judgments are affirmed.

Tom G. Davis, Justice

Before Chief Justice Carroll, Justices Aboussie and Davis*

Affirmed on Both Causes

Filed: May 17, 1995

Do Not Publish

* Before Tom G. Davis, Judge (retired), Court of Criminal

Appeals, sitting by assignment.

See Tex. Gov't Code Ann. Sec. 74.003(b) (West 1988).

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OFFICIAL NOTICE [POSTCARD]

COURT OF CRIMINAL APPEALS

September 13, 1995

RE: Case No. 0721-95

RE: Case No. 0722-95

STYLE: WOLF, JEROME

STYLE: NEWSOM, GARY

The Petitioners’ and State’s Petitions for Discretionary

Review were refused

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