Ted H. Roberts v. State

Citation: Not availableDocket: 04-07-00616-CR

Court: Court of Appeals of Texas; October 8, 2008; Texas; State Appellate Court

Original Court Document: View Document

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Ted H. Roberts was found guilty by a jury on three counts of theft, resulting in a five-year prison sentence. He appealed the conviction on five grounds: 

1. The trial court wrongly denied his motion for a new trial, claiming his actions were lawful.
2. He argued that section 31.03 of the Texas Penal Code was unconstitutionally vague and overbroad in its application.
3. He contended that evidence supported his defense of mistake of law.
4. He claimed the indictments should have been quashed as they lacked sufficient details on the alleged conduct constituting an offense.
5. He asserted that the evidence was legally and factually insufficient to uphold his conviction.

The court affirmed the trial court’s judgment. The case background included testimony from Christi Treviño, a former receptionist at Roberts’s law firm, who recounted Roberts's plans to confront individuals involved with his wife after discovering her affairs. Treviño detailed Roberts's actions, including obtaining access to an office for document preparation and instructing her to set appointments under a false name. Furthermore, Roberts engaged a private investigator to retrieve information from his wife's computer, expressing intentions to confront her affairs’ partners and demand money under deceptive pretenses. Witnesses described Roberts's emotional reactions during this process, including moments of distress and comments about soliciting funds from the individuals involved.

Getrost recalled that Roberts suggested the men might write a check or he would go to the news. During cross-examination, Getrost was uncertain about the sequence of meetings but noted that the meeting where Roberts cried occurred after he made the comment about writing a check. Paul James Fitzgerald, an accountant, had an affair with Mary from early August to September 2001, despite knowing she was married to Roberts, who practiced law with West. Fitzgerald received an unusual phone message from Dr. West regarding a tax appointment, recognizing the name from Roberts’s firm. Roberts later contacted Fitzgerald to discuss the affair. During their meeting, Roberts expressed his emotional distress, stating he had to hire other attorneys due to his inability to work. Fitzgerald apologized and suggested moving on, but Roberts insisted Fitzgerald needed to pay him, claiming his penance would be a donation to a children’s foundation he was establishing. 

Roberts handed Fitzgerald or later sent him a petition requesting court permission to investigate claims, based on Rule 202 of the Texas Rules of Civil Procedure. The petition included highlighted sections of the Texas Penal Code, alarming Fitzgerald about potential criminal implications that could jeopardize his CPA license. The petition also threatened to depose Fitzgerald’s wife and access his computers containing sensitive client information. Roberts demanded $25,000, and Fitzgerald ultimately agreed to pay $15,000, issuing three checks on November 21, 2001—one to SMI for analyzing Mary’s computer and two to attorneys who assisted Roberts. Fitzgerald considered stopping payment on the checks but refrained due to fear of the petition's threats. 

Roberts never disclosed that Mary had affairs with at least four other men, including lawyer Geoffrey Ferguson, with whom she had an affair in August 2001. Mary informed Ferguson that Roberts was aware of their relationship, prompting Roberts to arrange a meeting. Before meeting Roberts in November 2001, Mary told Ferguson about her difficulties with Roberts knowing of her other boyfriend. During their meeting, Roberts handed Ferguson a Rule 202 petition for review and mentioned emails between Mary and Ferguson during a vacation. He indicated he was seeking counseling and appeared upset, implying that he needed compensation for vacation and counseling expenses, while not disclosing that he had been in counseling for an extended period prior to the affairs. He suggested that if the petition were filed, Ferguson’s wife would learn about the affair.

Roberts sought to investigate Ferguson for alleged crimes related to an affair and to examine Ferguson's law firm accounts. The petition identified Mary as having an adverse interest to Roberts, yet Ferguson was unaware that Roberts and Mary had recently made a $625,000 home purchase. In a subsequent meeting, Roberts requested $30,000 from Ferguson, citing the need for counseling for his children. He did not disclose that he was also soliciting funds from other men involved with Mary for similar expenses. Ferguson issued a check to Roberts as trustee of a children's foundation, stating he would not have done so had he known about Mary's other affairs or that other men were being asked for contributions.

Riebel, who had an affair with Mary, was informed by her that Roberts had discovered their relationship and was investigating him and other men. Mary did not disclose her additional affairs to Riebel. After receiving legal papers from Mary, which outlined Roberts’ intentions to investigate Riebel’s company and employer, Riebel feared public exposure would damage his reputation and possibly lead to termination. Riebel consulted an attorney, who confirmed Roberts could move forward with his petition. Prior to a December meeting with Roberts, Riebel's attorney received a list of expenses Roberts wanted reimbursed, which included costs related to forensic investigations, vacations, attorney retainers, and psychological fees, none of which Riebel was aware were also being billed to other men. Riebel’s attorney indicated he was only willing to cover the expenses and not the additional amounts Roberts demanded, while Roberts claimed to share Riebel's interest in children and planned to establish a charity for children from broken homes.

Riebel expressed a desire to consider a donation to a charity, prompting Roberts to give him five minutes to decide before Roberts would act on legal documents. Roberts sought reimbursement of $30,000 in expenses and a $70,000 charity contribution, to which Riebel agreed, contingent upon verifying the charity's 501(c)(3) status by March 2002. Riebel emphasized that he intended the contribution for its stated purpose and was unaware of any personal use by Roberts.

In late summer 2001, Reagan Sakai engaged in a sexual encounter with Mary, leading to a request from Mary for a meeting. At a hotel bar, Roberts confronted Sakai, identified himself as Mary's husband, and presented legal documents that Sakai interpreted as a threat to his job and family, containing various legal claims against him. Following their interaction, Sakai believed they had agreed on a $10,000 payment, but Roberts later demanded $15,000, which Sakai viewed as extortion or "hush money." Sakai ultimately settled on a $10,000 payment to maintain confidentiality and prevent legal action.

Texas Ranger Chance Collins was tasked with investigating Roberts and Mary based on a newspaper article, examining payments made to Roberts from several individuals, including Sakai, Riebel, Fitzgerald, and Ferguson. Collins noted significant checks deposited into Roberts's law firm account, including a $30,000 check from Ferguson and a $30,000 check from Riebel. A $93,000 withdrawal was made to fund a down payment on Roberts and Mary's new home. Additionally, Sakai's $10,000 check for the Genesis Foundation for Children and Riebel's $70,000 check were deposited into accounts associated with the Roberts Foundation for Children.

In June 2002, $50,000 was transferred from one account to Roberts’s law firm account. Broadus Spivey testified regarding the legality and common usage of Rule 202 petitions as investigative tools, indicating that Roberts's petitions reflected the legal context for claims, such as intentional infliction of emotional distress and respondeat superior, in 2001. Spivey clarified that Roberts’s choice not to file these petitions did not indicate any misrepresentation of intent prior to settlements, asserting that the petitions merely requested investigations rather than making accusations.

Roberts challenged the trial court's denial of his motion for a new trial, arguing that his conduct was lawful, dedicating extensive discussion to justify this position. The standard of review for such a ruling is an abuse of discretion, meaning the trial court's decision is upheld if it falls within a reasonable interpretation of the evidence.

Roberts focused on the definition of 'unlawful' as per Texas Penal Code, arguing that his actions did not constitute theft since they were not criminal or tortious. The code states that theft occurs when a person unlawfully appropriates property with the intent to deprive the owner. While the term 'unlawful' is defined broadly, section 31.03(b) specifies that appropriation is 'unlawful' when done without the owner’s effective consent. Thus, the prosecution needed to prove that Roberts appropriated property without such consent to establish that his actions were unlawful. Evidence supporting the absence of the owner’s consent will be examined in relation to Roberts’s sufficiency argument.

Roberts argues that his use of Rule 202 petitions to threaten a lawsuit did not constitute duress, citing various civil cases to support his position. However, the State contends that the legality of his conduct must be assessed under criminal law, which differs from civil law. The State points out that the civil cases Roberts references do not apply to whether his actions could be deemed criminal. Additionally, Roberts cites cases affirming that communications made during judicial proceedings are privileged and cannot form the basis for defamation claims. Nonetheless, the State asserts that this privilege does not preclude criminal prosecution for misuse of Rule 202 petitions, as criminal statutes govern the legality of his actions. 

Roberts also claims that settlement contracts he entered into are valid and prevent findings of unlawful deception. While breaches of contract are typically civil matters, criminal charges can arise from contractual conduct depending on the circumstances. He cites cases to illustrate this point. However, the State clarifies that a release signed by private individuals does not prevent criminal prosecution by the State, as immunity from prosecution must be formally granted by the district attorney and approved by the trial court.

Roberts argues that his conviction will negatively impact the future use of Rule 202 petitions, which he claims inherently involve threats. His attorney admitted that Roberts's actions would be criminal without the context of these petitions. The court found no justification for Roberts's use of his law license to draft Rule 202 petitions aimed at coercing contributions to his personal charity, asserting that such conduct does not transform extortion into lawful behavior. The court emphasized that Rule 202 petitions are meant for legitimate investigatory purposes and affirmed that the conviction will not hinder their proper use.

Regarding the constitutionality of section 31.03 of the Texas Penal Code, Roberts contends it is unconstitutionally overbroad and vague. The court applies a standard of review that presumes the statute's validity and requires interpretation based on its plain language. It first assesses the overbreadth claim. The statute defines unlawful appropriation of property as occurring without the owner's effective consent, which is not valid if induced by deception or coercion. The court noted that the conduct described is akin to bribery or extortion, neither of which is protected by the First Amendment, thereby finding the statute not unconstitutionally overbroad.

In addressing the vagueness claim, the court explained that a statute is vague if its prohibitions are not clearly defined. However, the vagueness doctrine does not turn practical difficulties in drafting statutes into constitutional issues. The court employs a two-part inquiry to evaluate vagueness in criminal statutes. Ultimately, both claims regarding section 31.03 were rejected, affirming its constitutionality.

A criminal statute must provide sufficient information to an ordinary person about what conduct risks violating the law, offering fair warning based on common understanding and practices. A statute is deemed unconstitutionally vague if it does not clearly define prohibited activities and fails to provide adequate notice to law enforcement to prevent arbitrary enforcement. Roberts claims that section 31.03 is unconstitutionally vague, relying on the Waco court's decision in State v. Hanson, where a statute was found insufficiently clear regarding the term "threat." However, the current statute defines coercion as threats that harm a person's reputation, and when read in context, it is not overly vague. The definitions of "coerce" and "deception" are also deemed adequate under Texas law.

In addressing Roberts' motion to quash the indictment, he argues that it lacked sufficient detail about the alleged criminal conduct, merely repeating statutory language and naming complainants. The sufficiency of an indictment is a legal question reviewed de novo. The indictment charged Roberts with theft by deception and coercion according to section 31.03(a), which is generally sufficient if it outlines the relevant penal statute. However, in cases requiring specific transactions, as noted in Moff, a defendant must be given enough detail to investigate and prepare a defense. While the State is not required to fully lay out its case in the indictment, it must inform the defendant of specific transactions that allegedly violate the statute.

Roberts received adequate notice from the indictment, allowing him to investigate the allegations and formulate a defense. The indictment specifically named the complainants and detailed the definitions of 'coercion' and 'deception' he allegedly violated, providing sufficient information regarding the actions that constituted the alleged offenses. Questions raised by Roberts regarding the indictment's sufficiency pertained to evidentiary facts that the State is not obligated to include. It would not be appropriate to require the State to fully present its case within the indictment. Even if the indictment were deemed insufficient, reversal would only be warranted if the lack of notice significantly impaired Roberts's ability to prepare his defense, which he did not demonstrate. Most issues raised on appeal focused on the criminality of his conduct rather than a lack of understanding of the charges. Roberts had access to grand jury transcripts, indicating he was aware of the conduct considered during the indictment process.

Regarding the sufficiency of the evidence, the court evaluates all evidence favorably towards the verdict to determine if a rational jury could find the essential elements of the offense beyond a reasonable doubt. For factual sufficiency, the court assesses the evidence neutrally and may overturn a verdict only if it is clearly wrong or unjust. Deference is given to the jury's determinations, especially regarding the weight and credibility of evidence. The jury convicted Roberts for unlawfully appropriating property from the complainants without effective consent through deception or coercion, finding him guilty of appropriating an aggregate amount of $100,000. The jury was instructed that deception includes creating a false impression that affects another's judgment in a transaction and includes failing to correct a previously created false impression.

Roberts misrepresented several key facts to Ferguson and Riebel regarding his counseling and financial dealings related to his affair with Mary. He falsely implied that his counseling was initiated by Ferguson’s relationship with Mary and concealed his prior counseling history. Roberts also deceived Ferguson about hiring outside attorneys, which Treviño disproved. Ferguson would not have agreed to pay expenses had he known about Mary's other undisclosed affairs. Additionally, Roberts falsely claimed to be the trustee of a children's foundation and misused Ferguson's check by depositing it into his law firm’s account instead of the foundation. 

Regarding Riebel, Roberts led him to believe he was the sole expense payer related to the affair, while also failing to disclose Mary's other affairs. He falsely suggested he intended to establish a charity for children and misrepresented his inability to work due to the affair. Coercion was defined for the jury as a threat to harm someone's reputation. Ferguson and Riebel both expressed concerns that the disclosure of information related to the affair could harm their reputations and careers. Riebel, under pressure, was threatened by Roberts to make a quick decision about contributing to the charity.

The evidence presented was sufficient to support Roberts's conviction. The standard for evaluating his affirmative defense was that the judgment should not be manifestly unjust when considering all evidence. Roberts bore the burden to prove his defense, which included demonstrating a reasonable belief that his actions were lawful. However, testimonies indicated that he acted out of vengeance and intent to coerce, undermining his defense. The jury found that Roberts's claims were based on misinterpretations of the law, as he relied on incorrect definitions attached to the petition. The trial court's judgment was affirmed.