# Petition for Writ of Certiorari — Newsom v. Texas

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 516 U.S. 1116

## Text

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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.

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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.

A-24

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

A-26

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

A-27

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:

A-28

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

A-29

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,

A-30

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

A-31

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

A-32

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).

A-33

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_0944%3A1. Public record. Not legal advice.