05-09-01254-CR Green, Durwan Deon v. The State of Texas

Before Justices Bridges, Richter, and Murphy

Opinion By Justice Richter

A Collin County grand jury issued a true bill of indictment, accusing appellant, Durwan Deon Green, with two counts of money laundering (counts I and III) and one count of securing execution of a document by deception (count II). A jury convicted appellant on all counts and sentenced him to ten years of community supervision and a fine of $10,000 on counts I and II, and two years in prison and a fine of $10,000 on count III. In three issues, appellant challenges venue, territorial jurisdiction, and the legal sufficiency of the evidence to prove the money involved was proceeds of criminal activity. We affirm the trial court’s judgment.

BACKGROUND

Barbara Miller (complainant) lives in Colorado. Prior to moving to Colorado over twenty years ago, Miller lived in Texas and worked with Trina Green. Miller and Trina Green became close friends and stayed in touch after Miller moved to Colorado. In 2006, Trina Green told Miller that she was investing in residential real estate through her nephew, appellant, and his real estate investment company, Alpha & Omega Estates, LLC (Alpha & Omega). Trina Green was so enthusiastic about her real estate investments, Miller decided it might be a good opportunity for her as well.
Miller testified that based on what she was told by Trina Green, she understood that Alpha & Omega selected homes for investors, handled all the paperwork, and found tenants to rent the homes after they had been purchased. Miller was told there was “nothing to lose” because either the rent payments would cover the mortgage costs or Alpha & Omega would pay the mortgage payments. Miller further understood that Alpha & Omega handled all property maintenance. In addition, Miller would receive a $4,000 monetary incentive payment for each property she purchased. Miller testified that although she did not receive anything in writing from Alpha & Omega to confirm her understanding of the terms of the investment, she was not concerned because she trusted Trina Green one hundred percent.
In August 2006, appellant selected a residence located at 406 Sagebrush Trail, in Murphy, Collin County, Texas, for Miller to purchase. According to the evidence presented at trial, appellant and Trina Green flew to Denver, Colorado and met Miller in a hotel lobby to complete the closing documents for the transaction. After Miller signed the paperwork, appellant gave Miller a check for $4,000. Miller testified that she purchased two additional homes through appellant between August and December, 2006. She stated that she received $4,000 from appellant for each closing. Miller later learned that a fourth home had been purchased using her name and personal information; however, she never signed any documents with respect to the fourth home.
Initially, everything proceeded as promised. After Miller purchased the residences, she sometimes had tenants and received rent from them, and other times Alpha & Omega sent Miller money for the mortgage payments. However, in early 2007, one of Alpha & Omega’s checks to Miller was returned for insufficient funds, and no one at Alpha & Omega would return Miller’s phone calls. Miller subsequently learned there were no tenants in any of her properties. Without rent payments, she could not maintain the mortgages and the lender foreclosed on Miller’s property in Murphy, Texas.
Miller contacted an attorney, filed a police report, and ultimately complained to the Collin County District Attorney’s Office. Appellant was indicted and pleaded not guilty. Appellant was tried, along with co-defendant Jasmine Aponte, before a jury. At trial, Miller testified that when she examined the mortgage documents for the Murphy property, she discovered that both her income and employment history were inflated and the loan documents stated the home would be used as a second home rather than an investment property. Miller testified that her signature was forged on the initial loan application and several other documents. She also testified that she discovered that $43,000 from the loan was disbursed directly to Alpha & Omega at closing, after the seller was paid for the home. According to Miller, she did not know that Alpha & Omega would receive $43,000 from the purchase of the property and would not have agreed to the purchase had she known.
At trial, the State’s expert witness was Dr. Gary Lacefield, compliance officer for W.R. Starkey Mortgage, president of Risk Mitigation Group, and formerly the supervisor of lending investigations for the U.S. Department of Housing and Urban Development. Lacefield testified that this case involved two loans, the first for $186,000 and a second for $46,500. Miller borrowed money to purchase the Murphy property by means of a “stated income stated asset loan” which did not require her to provide documentation to support her claimed income. Lacefield testified that Miller’s stated income and documentation stating that the property would be a second home were significant factors in the loan process and would have had an impact on whether the loans were granted and what interest rate could be obtained. A home occupied by its owner typically qualified for a lower interest rate than did a home purchased as a rental property. Lacefield testified that in a transaction such as this, the mortgage lender and the title company rely on the mortgage broker to provide them with accurate information. Lacefield testified that based on the loan documentation, it appeared that a company called Alethes d/b/a Amerinest Mortgage brokered Miller’s loans to Southstar Funding (the lender), through appellant, the broker of record on the loans. Lacefield stated that according to his review of the documents, New Frontier Title Agency was the title company and settlement agent for the purchase of the Murphy residence. He stated there were significant discrepancies in the HUD-1 settlement statements provided to buyer, lender and title company. HUD-1 settlement statements are required to list every payment related to the sale and the source of such payment. The buyer, lender, and title company should receive identical copies of the HUD-1 settlement statement. Here, the settlement statements for the Murphy property were completely different. The seller’s settlement statement listed a sale price of $187,632, but the lender’s and title company’s settlement statements showed a price of $232,500. The loan amounts and settlement charges to the borrower differed on the statements. The statements included commissions to be paid but the amounts reflected on the lender’s statement did not match the amounts on the title company’s statement. The lender’s settlement statement reflected loan proceeds in the amount of $224,967 being paid to D.R. Horton, the seller. However, the settlement statements for seller and the title company reflected a payment to D.R. Horton of $181,445. The title company’s statement included a $43,521.96 cash disbursement to appellant; however, this $43,521.96 disbursement was not listed on the seller’s or lender’s statements. Lacefield opined that the lender was not aware of the payment to appellant and had not approved it. He further opined that $43,521 was not an appropriate commission to be paid to the mortgage broker.
Lacefield also testified that two of the three signature pages on the HUD-1 settlement statements were not original signature pages. His review of the closing documents indicated that Jasmine Aponte was the notary for the transaction and Jasmine Lewis, apparently the same person, was listed as the real estate agent receiving a $6,761 commission on the transaction. He opined that if the same individual notarizing documents at the closing also received a commission as the real estate agent representing the buyer, it would be a fraudulent loan. According to Lacefield, “there is a hard and fast rule that anyone with an interest in the property cannot participate in the verification.”
Lacefield then described this transaction as a typical mortgage fraud scheme involving a straw buyer. He stated that the person perpetrating the fraud starts with a borrower who has good credit and can be qualified for a series of loans over a short period of time. He explained that typically when a lender funds a loan, they quickly sell the loan to another lender that actually holds and services loans. So long as loan payments are made timely for a period of time, the original lender does not have to repurchase the loan. When the loan goes into default, the likelihood of a fraud investigation by the lender is diminished because the original lender no longer holds the loan.
Appellant testified at trial. He explained that his company, Alpha & Omega, looked for residential loans that were about to go into foreclosure, negotiated deals with the owners to buy the properties or take over their notes, fixed up the houses, and resold the houses for a profit. Appellant testified he also received builder deals in which builders gave Alpha & Omega discounted house prices. Appellant testified that the payment of $43,521.96 to Alpha & Omega was a builder’s incentive from the seller, D.R. Horton, for finding a buyer for the Murphy residence. He stated the title company sent him a sales contract from D.R. Horton giving him a twenty percent bonus from the builder. However, when asked to produce or identify the document, he was unable to do so. He further testified that he showed Miller the HUD-1 form and told her the amount of money he would be receiving. According to appellant, she did not object.
Appellant testified that during the same period of time, he also worked as a loan officer for Amerinest Mortgage, the mortgage broker who qualified Miller for the loans on the Murphy residence. According to appellant, all the documentation pertaining to Miller’s purchase of the Murphy residence was prepared by the New Frontier Title Agency. However, he also testified that the documents were prepared with information provided by Miller to Angie Roberts, a loan processor who worked for appellant as an independent contractor. He testified that when he met Miller in Colorado, he went through every document and explained them in detail before she signed them. He denied promising Miller that the investment was risk-free and only agreed to help Miller find her first tenant and pay her mortgage until her first tenant began paying rent.
When asked why appellant notarized the documents as Jasmine Aponte and received a real estate agent’s commission as Jasmine Lewis, Green explained that appellant was going through a divorce at the time of the transaction and was in the process of going back to her maiden name. Her real estate license was in the name of Jasmine Lewis but her notary stamp reflected the name Jasmine Aponte. When asked about various Alpha & Omega checks made payable to New Frontier Title, appellant described his relationship with the title company and the closer, Ed Fox, explaining that he often catered meals for them and paid them for the use of their conference room for his real estate investment seminars.
Appellant acknowledged that if there were three sales contracts with different purchase prices, there was fraud in the transaction. He further agreed that it would be fraudulent to have three HUD-1 settlement statements with differing payment amounts but identical signature pages. However, he stated that he did not know anything about the fraud in this case and did not prepare any of the documentation.
At the close of the State’s case, appellant made an oral motion for directed verdict on the grounds that the State did not meet their burden of proof on any of the charges against him. Appellant did not object to venue or jurisdiction in the motion. A jury convicted appellant on all counts. After the jury returned its verdict but prior to the sentencing hearing, appellant filed a motion for instructed verdict, arguing the State failed to prove the essential elements of the offenses alleged against him and failed to show that venue was proper in Collin County, Texas. The trial court denied appellant’s motion and the jury sentenced appellant to ten years of community supervision and a fine of $10,000 on counts I and II, and two years in prison and a fine of $10,000 on count III. This appeal followed.

DISCUSSION

Appellant raises three issues on appeal. In his first issue, appellant contends the trial court erred in denying his oral motion for directed verdict at the close of the State’s case and his written motion for instructed verdict filed after the verdict challenging venue. In his second issue, appellant argues the trial court erred in denying his oral motion for directed verdict and proceeding to trial because it did not have territorial jurisdiction over the offenses charged. In his third issue, appellant challenges the legal sufficiency of the evidence to support his conviction for money laundering.
Venue
In his first issue, appellant argues the State failed to prove venue was proper in Collin County, Texas. Appellant contends the transaction related to his indictment was contracted and completed in the State of Colorado and therefore, proper venue does not lie in Collin County, Texas. We presume venue was proved in the trial court unless the matter was disputed in the trial court or the record affirmatively shows to the contrary. Tex. R. App. P. 44.2(c)(1). Venue must be proved only by a preponderance of the evidence, which may be either direct or circumstantial. Tex. Code Crim. Proc. Ann. art. 13.17 (West 2005); see Black v. State, 645 S.W.2d 789, 790 (Tex. Crim. App. 1983).
During trial, appellant’s counsel moved for a directed verdict at the close of the State’s case and before closing arguments. According to the record, the motion was based on sufficiency of the evidence and did not raise an issue as to venue. The jury returned its verdict against appellant on June 11, 2009. On June 19, 2009, prior to the sentencing hearing, appellant’s counsel filed a written motion for instructed verdict, raising a venue issue for the first time.
Generally, a defendant’s motion for instructed verdict which specifically challenges the proof of venue timely raises the issue. Black, 645 S.W.2d at 790; Braddy v. State, 908 S.W.2d 465, 467 (Tex. App.-Dallas 1995, no writ); Cunningham v. State, 848 S.W.2d 898, 901 (Tex. App.-Corpus Christi 1993, writ ref’d). The issue must be raised sometime during the trial at a time when the State could have reopened its evidence to correct the evidentiary deficiency. See Cunningham, 848 S.W.2d at 901-02; see also Wyatt v. State, 268 S.W.3d 270, 272 (Tex. App.-Amarillo 2008, no pet.). “If the State is placed on notice that venue has not been proven while it is in a position to correct the evidentiary deficiency by reopening its case, the defendant has timely raised the issue, and the appellate court must review the evidence to determine whether venue was proven.” Cunningham, 848 S.W.2d at 902. The trial court has the discretion to permit a party, including the State, to reopen its case to prove venue. See Wyatt, 268 S.W.3d at 272 (citing Cox v. State, 494 S.W.2d 574, 575 (Tex. Crim. App. 1973) (trial court has discretion to reopen evidence to allow State to prove venue after both sides had rested); Martin v. State, 160 Tex. Crim. 364, 367, 271 S.W.2d 279, 280 (Tex. 1954) (trial court may permit the State to reopen after a motion for instructed verdict and after the charge had been presented to the accused)); see also Tex. Code Crim Proc. Ann. art. 36.02 (West 2007). However, if a defendant waits to challenge venue in a motion for new trial, the issue is not timely raised. Gonzales v. State, 486 S.W.2d 380, 381 (Tex. Crim. App. 1972); Cunningham, 848 S.W.2d at 901.
Here, the State was not placed on notice that venue had not been proven while it still had the opportunity to correct any evidentiary deficiency by reopening its case. Appellant did not raise the issue of venue until after the jury had already returned its verdict of guilty on all three counts. Appellant’s motion, filed ten days after the jury’s verdict, was entitled “motion for instructed verdict.” However, the jury had already returned its verdict and the trial court did not have the authority to grant a verdict different from the verdict rendered by the jury. See State v. Savage, 933 S.W.2d 497, 499 (Tex. Crim. App. 1996); Dunn v. State, 176 S.W.3d 880, 885 (Tex. App.-Fort Worth 2005, no pet.); see also Tex. Code Crim. Proc. Ann. art. 42.01 (West Supp. 2011). Appellant’s motion for instructed verdict and his venue challenge were untimely. See Cunningham, 848 S.W.2d at 901-02. Therefore, we conclude the trial court did not err in denying appellant’s motion for instructed verdict.
Because appellant did not timely raise the issue of venue at trial, appellant waived his venue challenge. See Creekmore v. State, 860 S.W.2d 880, 889 (Tex. App.-San Antonio 1993, writ ref’d) (“Improper venue, not being a jurisdictional flaw, may be waived by the defendant’s failure to raise it as an issue at trial.”). Appellant’s first issue is overruled.
Territorial Jurisdiction
In his second issue, appellant complains the trial court erred by failing to grant appellant’s motion for directed verdict at the close of the State’s case, based on the fact that the trial court lacked territorial jurisdiction. The State of Texas has jurisdiction over an offense that a person commits by his own conduct or the conduct of another for which he is criminally responsible if “either the conduct or a result that is an element of the offense occurs inside this state.” Tex. Penal Code Ann. § 1.04(a)(1) (West 2011). Appellant contends the trial court did not have jurisdiction because all of the evidence at trial indicated that his conduct occurred in Colorado.
The record shows that although appellant traveled to Colorado to facilitate Miller’s signature on certain documents, the transaction was finalized in Texas. The documents were prepared in Texas. The settlement took place at New Frontier Title Agency in Plano, Texas, and funds were disbursed to three Texas banks. Appellant received $43,521.96 from the sale, which New Frontier Title Agency deposited into his bank account in Fairview (Collin County). The property sale of the Murphy house was recorded in Collin County, Texas. Appellant’s conduct or, at a minimum, a result of his conduct in facilitating the transaction constituted various elements of the offenses with which he was charged. Therefore, the State of Texas had territorial jurisdiction over appellant. See Tex. Penal Code Ann. § 1.04(a)(1). Appellant’s second issue is overruled.
Legal Sufficiency Of The Evidence
In his third issue, Appellant contends there were no proceeds of criminal activity; therefore, the evidence is legally insufficient to show he committed the offense of money laundering. In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). We defer to the jury’s credibility and weight determinations because the jury is the sole judge of the witnesses’ credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326.
Count I of the indictment charged appellant with the offense of money laundering in knowingly conducting, supervising, or facilitating a transaction involving the proceeds of criminal activity (U.S. currency in the aggregate amount of $200,000 or more) in connection with the purchase of the house in Murphy, Texas. Count I further alleged such currency was the proceeds of offenses related to one scheme or a continuing course of conduct involving securing the execution of a document by deception (SEDD) and making a false statement to obtain property or credit (false statement). Count III charged appellant with knowingly acquiring or maintaining an interest in, possessing, or transferring the proceeds of criminal activity, U.S. currency in the amount of $20,000 or more but less than $100,000, in connection with the purchase of the house in Murphy, Texas. Count III of the indictment further stated such currency was the proceeds of offenses related to one scheme or a continuing course of conduct involving SEDD and false statement. A person commits the offense of money laundering if he knowingly (i) acquires or maintains an interest in, conceals, or possesses the proceeds of criminal activity, or (ii) conducts, supervises, or facilitates a transaction involving the proceeds of criminal activity. Tex. Penal Code Ann. § 34.02(a)(1), (2) (West 2011).
Appellant argues there is no direct or circumstantial evidence of a temporal connection or nexus between the money and the criminal activities with which he was charged. Appellant also suggests the jury convicted him on a theory not alleged in the indictment. The State responds there is ample evidence that the funds were the proceeds of criminal activity, specifically SEDD and false statement. To prove SEDD, the State was required to show that appellant, by deception and with intent to defraud or harm, caused a person to execute any document affecting property. Tex. Pen. Code Ann. § 32.46(a)(1) (West 2011). A person commits the offense of making a false statement to obtain property or credit by intentionally or knowingly making a materially false or misleading written statement to obtain property or credit, including a mortgage loan. Tex. Pen. Code Ann. § 32.32(b) (West 2011).
The State asserts appellant deceived Miller into executing the mortgage documents for the Murphy property by making false promises that her investment would be risk free, deceiving her as to the value of the property, and failing to inform her he would receive a $43,521.96 payment out of her loan. The State contends appellant also deceived the lender into approving a loan that included an undisclosed and unapproved payment directly to appellant. The State contends the lender paid $232,000 as a result of appellant’s criminal activities, including a $43,521.96 payment directly to appellant. The State asserts that these funds were the proceeds of criminal activity, either securing execution of a document by deception or making false statements to obtain property or credit, and thus the evidence is sufficient to support appellant’s convictions for money laundering.
At trial, the jury heard Miller’s testimony that appellant found the Murphy residence for her to buy. Miller testified that appellant’s promises of a risk-free investment deceived her into executing the documents and purchasing the Murphy residence. She further testified that he deceived her regarding the value of the property and did not inform her that he would receive a $43,521.96 payment from her loan proceeds. The jury heard evidence of false statements in the documents and forged signatures on the initial loan application and other documents.
Lacefield described this transaction as a typical mortgage fraud scheme involving a straw buyer. He also testified regarding the discrepancies in the documents and explained why having three different versions of the HUD-1 settlement documents was deceptive.
The jury also heard appellant’s testimony that if there were three sales contracts with different purchase prices, there was fraud in the transaction. Although appellant testified he did not prepare any of the documents, the jury heard testimony that the loan processor who prepared the documents worked for appellant as an independent contractor. Jasmine Aponte, the real estate agent and notary, also worked for appellant as an independent contractor. Appellant testified he was an employee of the mortgage company that qualified Miller for a mortgage on the Murphy property. He further claimed that the $43,521.96 payment he received as a result of Miller’s purchase of the Murphy residence was an incentive bonus from the seller. Based on the evidence outlined above, we conclude that even if appellant did not personally prepare the settlement documents, he knowingly played an integral part in supervising and facilitating the sale of the Murphy property to Miller. Further, he knowingly acquired, maintained an interest in, and possessed a payment of $43,521.96 from Miller’s loan proceeds.
It was the jury’s function to resolve any conflicts in the evidence, and the jury was free to accept or reject any and all of the evidence presented by either side. Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). Considering all the evidence in the light most favorable to the verdict, we conclude that the jury was rationally justified in finding guilt beyond a reasonable doubt and the evidence is sufficient to support appellant’s conviction for money laundering. See Brooks, 323 S.W.3d at 899. Appellant’s third issue is overruled.

CONCLUSION

Having overruled all of appellant’s issues, we affirm the judgment of the trial court.
MARTIN RICHTER
JUSTICE
Do Not Publish
Tex. R. App. P. 47
091254F.U05

File Date[01/11/2012]
File Name[091254F]
File Locator[01/11/2012-091254F]

Opinion PDF file
Opinion on the court’s website

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