Lewis v. State

TIFFANY LYNN LEWIS APPELLANT v. THE STATE OF TEXAS STATE

NO. 02-14-00451-CR

NO. 02-14-00452-CR

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

December 3, 2015

FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

TRIAL COURT NOS. 1171316R, 1388094R

MEMORANDUM OPINION¹

I. INTRODUCTION

Appellant Tiffany Lynn Lewis appeals from her conviction and sentence for falsely holding herself out as a lawyer and from the revocation of her community supervision and resulting sentence for misapplication of fiduciary property, valued between $20,000 and $100,000. See Act of May 29, 1993, 73rd Leg.,R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3653 (amended 2015) (current version at Tex. Penal Code Ann. § 32.45(c)(5)); Tex. Penal Code Ann. § 38.122 (West 2011). In three points, Lewis argues that the evidence is insufficient to sustain her conviction for falsely holding herself out as a lawyer, that the trial court abused its discretion by admitting evidence about her disbarment during punishment, and that the trial court's stacking of her sentences constitutes cruel and unusual punishment. We will affirm.

II. BACKGROUND

From December 1995 to April 2005, Lewis was licensed to practice law in Texas. During that time, she endorsed a check for $78,082.23 that was made payable to her client; the check represented funds awarded to her client during a probate proceeding. Lewis pleaded guilty to misapplication of fiduciary property, valued between $20,000 and $100,000; the trial court found her guilty, sentenced her to ten years' confinement and ordered her to pay $58,256.92 in restitution, suspended imposition of the sentence, and placed her on ten years' community supervision. Lewis was ultimately disbarred as a result of the facts underlying this conviction for misapplication of fiduciary property.

After Lewis was disbarred, she did not notify courts of her disbarment but instead accepted appointments and appeared in court on behalf of clients. One of Lewis's clients during the time when Lewis was disbarred was J.M.² J.M.needed to hire an attorney to find out whether she could obtain money from a lien she had on her daughter's house, which had been foreclosed on without notice to J.M. She contacted a landman who said that he would have an attorney call her. In response, J.M. received a call from Lewis. J.M. specifically asked Lewis on the telephone whether she was an attorney, and Lewis said that she was an attorney. J.M. asked to set up a meeting at Lewis's office so that she could give her the paperwork that she had copied from the courthouse deed records, and Lewis said that she had an associate with an office in Colleyville.

When J.M. met with Lewis, Lewis gave J.M. a contract and stated that the foreclosure had been done improperly, that Lewis would recover money from J.M.'s lien on the property, and that Lewis would pursue damages for J.M. and for her grandchildren.³ Both J.M. and Lewis signed the contract with Lewis signing as "T. Lewis" above the typed out "Lynaire & Associates."⁴ When Lewis said that she needed a $500 retainer fee, J.M. again asked whether Lewis wasan attorney, and Lewis said yes. J.M. made her $500 check payable to "Tiffany Lewis, Attorney at Law." Lewis negotiated the check.

Sometime later, J.M. became dissatisfied with Lewis's representation because J.M. did not feel that any work was being done. J.M. ran an internet search on Lewis and discovered that she had been disbarred. J.M. called Lewis and terminated the contract, stating that she had been misled and that she wanted her money back. Lewis told J.M. that she had referred the case to in-house attorney Christopher Lewis, but J.M. testified at trial that she had never met with or spoken to him. J.M. never received a refund of the $500 retainer.

After hearing the above evidence, the jury found Lewis guilty of falsely holding herself out as an attorney. After hearing punishment-phase evidence of additional instances in which Lewis falsely held herself out as an attorney and lied about her identity in various transactions, the jury assessed Lewis's punishment at ten years' confinement and a $10,000 fine. The trial court sentenced Lewis in accordance with the jury's recommendation.

After the trial court dismissed the jury, the trial court held a hearing on the State's petition to revoke Lewis's community supervision in the prior misapplication-of-fiduciary-property case. The State's motion to revoke Lewis's community supervision in the misapplication-of-fiduciary-property case alleged five new offenses involving fraud or deception and three other violations of her community-supervision conditions, including that she was over $15,000 in arrears on her restitution payments. The trial court found all of the allegations tobe true, revoked Lewis's community supervision, sentenced her to ten years' confinement, and ordered her to pay $42,638.92 in restitution. The trial court also granted the "State's Request For Consecutive Or 'Stacked Sentence,'" ordering Lewis's ten-year sentence for falsely holding herself out as an attorney to run consecutively with her ten-year sentence for misapplication of fiduciary property. Lewis then perfected this appeal.

III. SUFFICIENT EVIDENCE SUPPORTS LEWIS'S CONVICTION FOR FALSELY HOLDING

HERSELF OUT AS A LAWYER

In her first point, Lewis argues that the evidence is factually⁵ and legally insufficient to support her conviction for falsely holding herself out as a lawyer. Specifically, Lewis argues that the State failed to prove that she held herself out as a lawyer.

In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170(Tex. Crim. App. 2014). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.

A person commits the offense of falsely holding herself out as a lawyer if, with intent to obtain an economic benefit for herself, the person holds herself out as a lawyer without currently being licensed to practice law in this state, another state, or a foreign country and without being in good standing with the State Bar of Texas and the state bar or licensing authority of any and all other states and foreign countries where licensed. Tex. Penal Code Ann. § 38.122.

During the trial, Lewis stipulated that when she met J.M., signed the contract with J.M., and cashed J.M.'s $500 check made payable to "Tiffany Lewis, Attorney at Law," she was not licensed to practice law in Texas or any other state. J.M.'s testimony showed that she believed Lewis was an attorney based on her words and her conduct. J.M. twice asked Lewis if she was an attorney, and Lewis responded affirmatively. Lewis also gave J.M. legal advice—representing that the house legally belonged to J.M.'s grandchild, that the foreclosure was done incorrectly, that J.M.'s grandchildren should have received notice of the foreclosure, and that Lewis would go to court to seek damages on behalf of J.M. and J.M.'s grandchildren. Lewis obtained an economic benefit when she negotiated J.M.'s check.

Despite the above evidence, Lewis argues that the State failed to prove that she held herself out as a lawyer because (1) J.M. was the only witness who testified to this element of the offense, (2) Lewis's initial meeting with J.M. was not recorded, and (3) no witness corroborated J.M.'s testimony. The record reflects that throughout cross-examination, J.M. never wavered in her testimony that Lewis twice told her that she was an attorney, and the defense presented no controverting evidence. Because Texas Penal Code section 38.122 has no requirement that a victim's testimony be corroborated and because the jury is the sole judge of the weight and credibility of the evidence, the jury was free to believe J.M.'s testimony even in the absence of corroboration. See Tex. Penal Code Ann. § 38.122; Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434 S.W.3d at 170; cf. also Celis v. State, 416 S.W.3d 419, 427-28 (Tex. Crim. App. 2013) ("[T]he [l]egislature has placed the burden of complying with conditions imposed for the protection of the public upon those who hold themselves out as lawyers for profit, rather than placing upon the public the burden of determining whether an individual is qualified and eligible to provide legal services.").

Viewing the evidence in the light most favorable to the verdict, the jury could rationally have concluded beyond a reasonable doubt that Lewis intended to obtain an economic benefit for herself by holding herself out as an attorney to J.M. while Lewis was not licensed to practice law. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789 (setting forth standard of review); Rodriguez v. State, 336S.W.3d 294, 298-300 (Tex. App.—San Antonio 2010, pet. ref'd) (holding evidence sufficient to establish that appellant held herself out as an attorney because jury believed victim's testimony that appellant told him she was an attorney when they first met); see also Brown v. State, 468 S.W.3d 158, 163-64 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd) (holding evidence sufficient to support conviction based on victim's testimony, emails, and lack of any evidence that appellant had explained he was not victim's lawyer). We overrule the remainder of Lewis's first point.

IV. NO ABUSE OF DISCRETION IN ADMITTING PUNISHMENT-PHASE EVIDENCE

In her third point, Lewis argues that the trial court abused its discretion during the punishment phase by admitting evidence of the details surrounding her disbarment. Lewis objected to...