Michael Earnest Kurkewich v. State

Citation: Not availableDocket: 01-10-00695-CR

Court: Court of Appeals of Texas; July 14, 2011; Texas; State Appellate Court

Original Court Document: View Document

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Michael Earnest Kurkewich pleaded guilty to obstruction or retaliation, classified as a third-degree felony, and received a sentence of five years’ deferred adjudication, a $700 fine, three days in jail, and eighty hours of community service. On appeal, Kurkewich argued that the evidence was insufficient to support the finding that he threatened Ryan Brown due to Brown's status as a witness or prospective witness. The court found the evidence sufficient to establish Brown as a prospective witness, thereby upholding Kurkewich's conviction.

The background revealed that in 2007, Detective R. Williams investigated forgery involving checks deposited from the Browns’ account into the Kurkewiches’ bank account. Lynette Brown confirmed that the checks were unauthorized and that her signature was forged. During the pending forgery charges against Kelly Kurkewich, Michael confronted Ryan Brown, threatening to kill him and his family. A neighbor witnessed this confrontation and reported it to the police, corroborating Brown's account of the threats. Although the State did not interview Brown or call him as a witness in the forgery case against Kelly, the indictment against Michael charged him with threatening Brown in retaliation for his potential role as a witness.

Kurkewich's appeal claimed that the evidence did not sufficiently support his conviction. The court cited Texas law requiring sufficient proof for felony convictions based on guilty pleas and concluded that the evidence met this requirement, affirming the conviction.

The State is required to present sufficient evidence to support a conviction, as outlined in Tex. Code Crim. Proc. Ann. art. 1.15. A defendant's guilty plea does not necessitate an admission of the evidence truth, but if such an admission is made, it is treated as a judicial confession. A proffer of evidence must encompass all elements of the charged offense to support a guilty plea. Kurkewich's plea agreement included a stipulation and confession regarding the acts alleged in the indictment, which was established as voluntary and knowing. Typically, such stipulations and confessions suffice as evidence under article 1.15.

However, Kurkewich argued that the indictment's allegations did not substantiate a guilt finding for retaliation, which requires intentionally or knowingly harming or threatening a "prospective witness." The definition of a "prospective witness" encompasses anyone who may testify in an official proceeding and does not depend on the likelihood of their testimony. Therefore, the State's failure to designate Brown as a witness does not preclude his status as a prospective witness. 

Further, the offense of forgery necessitates proof of intent to defraud, passing of a writing, and that it purported to be the act of another without authorization. The record indicated that Brown, as a joint account holder, could have provided pertinent testimony regarding the authenticity of the checks and had personal knowledge of the unauthorized nature of those checks. Consequently, Brown qualifies as a prospective witness, thus legally and factually supporting Kurkewich’s retaliation conviction. The trial court's judgment is affirmed.