Borders v. State

654 S.W.3d 202

David Joseph BORDERS, Appellant

v.The STATE of Texas, Appellee

NO. 03-21-00545-CR

Court of Appeals of Texas, Austin.

Filed: August 18, 2022

Erika Copeland, Abilene, for Appellant.

Stacey M. Soule, Austin, Justin Bradford Smith, for Appellee.

Before Justices Goodwin, Baker, and Triana

OPINION

Thomas J. Baker, Justice

David Joseph Borders was indicted for aggregate theft of property. See Tex. Penal Code §§ 31.03, .09. After being indicted, Borders filed a motion to quash the indictment. Following several hearings, the trial court denied the motion. Borders then entered into a plea-bargain agreement with the State. Consistent with the agreement, the trial court deferred Borders's adjudication of guilt and placed him on deferred-adjudication community supervision for ten years. See Tex. Code Crim. Proc. art. 42A.101. On appeal, Borders argues that the trial court erred by denying his motion to quash. We will affirm the trial court's order of deferred adjudication.

BACKGROUND

Prior to his arrest, Borders worked for the Little River Academy Volunteer Fire Department ("Department"). The arrest affidavit stated that the Department's current treasurer noticed "numerous cash advances from the [D]epartment's BBVA debit card with no discernable purpose," concluded that there could be "no legitimate reason for the number and amount of cash advances," and reported the suspicious activity to the police. The investigating police officer obtained the Department's bank records, found "cash withdrawals ... from 2016 to 2018," "determined that the cash withdrawals ranged from $1,000 to $4,000 a month chiefly at increments of 200 to 400 dollars with many transactions occurring on the same day," and concluded that the "amount of funds appropriated between 2016 and 2018 was well in excess of $30,000.00." The affidavit specified that Borders agreed to be interviewed by the police and admitted that he withdrew some cash from the Department's accounts for personal use.

The police report prepared in this case specified that many of the "questionable transactions" noticed by the Department's treasurer were "ATM cash withdrawals," that other debit withdrawals occurred at stores, and that approximately $45,000 was withdrawn from the Department's accounts from October 2016 to June 2018 and remained unaccounted for. The debit card that was used to make the withdrawals "was assigned to Tanya Borders," who is Borders's wife and who had previously worked for the Department. The report identified some of the ATMs and stores where the withdrawals occurred, related that security camera footage shows Borders and his son William Borders making some withdrawals, and documented that the investigation focused on withdrawals occurring from October 2016 to June 2018.

The report explained that the Department's financial obligations are handled "with a debit card or by check," and former Department treasurers explained to the officer that because of the way the Department paid its bills, there was no reason to withdraw cash from the Department's accounts. One of the former treasurers explained that Borders admitted to using the debit card for expenses incurred during a family trip, including "fuel, meals, and lodging." The police report stated that from January 2016 to July 2018, Borders and Tanya regularly made cash deposits into their bank accounts totaling over $30,000 even though their employer paid them by check.

During an interview with the police, William admitted to using the debit card to withdraw money from the Department's accounts for personal purposes, and he told the police that Borders kept the card in his wallet. Similarly, Borders admitted to keeping the card in his wallet and using that card at ATMs to withdraw money from the Department's accounts—approximately $400 per week—but asserted that he withdrew the money to pay for items used to benefit the Department.

Borders was arrested and indicted for the offense of aggregate theft of property with a value of $30,000 or more but less than $150,000. Specifically, the indictment alleged as follows:

[Borders] did then and there, in a continuing course of conduct beginning October 1, 2016 and continuing to June[ ] 30 2018, unlawfully appropriate, by acquiring or otherwise exercising control over, property, to-wit: United States currency, of the value of $30,000 or more but less than $150,000 from the Little River Academy Volunteer Fire Department, the owner thereof, without the effective consent of the owner, and with intent to deprive the owner of the property, and the defendant was then and there a public servant, namely, fire chief, and such property appropriated by the defendant had theretofore come into his custody, possession, or control by virtue of his status as such a public servant.

After he was indicted, Borders filed a motion to quash. In his motion, Borders asserted that the indictment was fatally defective because it failed to provide him sufficient notice of the factual basis of the alleged offense to allow him to prepare a defense. Borders conceded in his motion that the indictment need not allege each specific act on which the State intends to rely and that the notice requirement can be satisfied by other methods; however, Borders urged that the discovery provided in this case did not provide sufficient notice because it was voluminous and not organized in a logical fashion, rendering it impossible for him to prepare his defense based on any particular transactions.

In its response, the State argued that the transactions forming the basis for the alleged offense are the "debit card withdrawals from" the Department's accounts and that the discovery in this case provided sufficient notice of those transactions. As support, the State attached to its response the arrest affidavit; the police report; a list of discovery that had been provided to Borders, including the transaction histories for several bank accounts; a summary of the cash withdrawals made from the Department's accounts from October 2016 to June 2018; and a list of the monthly statements for the bank accounts from which allegedly illegal withdrawals were made (e.g., BBVA Compass Transaction History April 2017). The State included a transaction history from one bank account for November 2017 as a sample of the types of bank records that had already been disclosed in discovery. The sample bank record showed for each withdrawal its date, amount, location, and type, including identifying whether the transaction was a cash withdrawal from an ATM or a debit withdrawal from a store. Further, one member of the investigation team circled all the ATM withdrawals for that month, circled some other check-card purchases from stores, and highlighted debit withdrawals used to make purchases at stores, including convenience stores.

The trial court held several hearings on the motion to quash during which the trial court reviewed an exhibit offered by Borders containing hundreds of pages of bank records.¹ The exhibit had previously been disclosed to Borders by the State and contained several groups of documents. One group is approximately eighty pages in length and contains the monthly transaction histories from October 2016 to June 2018 for the accounts at issue, including the sample transaction history mentioned above. As with the sample document, this group of account histories documents for each transaction its date, amount, location, and type (e.g., ATM withdrawal or debit withdrawal from a store).

During one hearing, the State explained that the transactions showing the alleged illegal conduct were in this group of transaction histories and that as with the sample document, the allegedly improper withdrawals had been circled or highlighted by one of the investigating officers. The exhibit similarly shows that most of the transactions were highlighted or circled, that all the cash withdrawals from ATMs were circled, and that certain debit withdrawals made for purchases at stores were highlighted. Consistent with its prior filings and the police report, the State explained during one of the hearings that the transactions at issue can be identified by looking at the transaction histories for the months in question.

After listening to the parties’ arguments, the trial court denied the motion. Following that ruling, Borders entered into a plea agreement with the State in which the State agreed to recommend that Borders be placed on deferred-adjudication community supervision for ten years. At the plea hearing, Borders entered "a plea of no contest." The trial court accepted the plea, deferred Borders's adjudication of guilt, and placed him on deferred-adjudication community supervision for ten years.

Borders appeals the trial court's order deferring his adjudication of guilt.

STANDARD OF REVIEW AND GOVERNING LAW

Criminal defendants have the constitutional right "to be informed of the nature and cause of the accusation" against them. U.S. Const. amend. VI. Consequently, indictments "must be specific enough to inform the accused of the nature of the accusation against him so that he may prepare a defense." State v. Moff , 154 S.W.3d 599, 601 (Tex. Crim. App. 2004) ; see also Tex. Code Crim. Proc. arts. 21.02 -.04, .11 (setting out statutory requirements for indictments). "The sufficiency of a charging instrument presents a question of law." Smith v. State , 309 S.W.3d 10, 13 (Tex. Crim. App. 2010). Accordingly, appellate courts review a trial court's ruling on a motion to quash under a de novo standard. Id. at 13-14 ; see also Moff , 154 S.W.3d at 601 (applying de novo review to trial court's decision to quash indictment because issue was question of law and because resolution of issue did not depend on "credibility and demeanor of a witness"). "The trial court's ruling should be upheld if it is correct under any theory of law applicable to the case." State v. Zuniga , 512 S.W.3d 902, 906 (Tex. Crim. App. 2017).

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