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Attorney to Seek New Trial After Theft Conviction for Demanding Payment From Wife's Lovers
Texas Lawyer
June 11, 2007
Ted Roberts, a San Antonio lawyer convicted on theft charges for extracting money from men who allegedly had sexual liaisons with his wife, will seek a new trial, says his attorney Michael McCrum.
On June 4, Judge Sid Harle of San Antonio's 226th District Court sentenced Roberts of Ted H. Roberts P.C. to five years for each of the three charges on which a jury convicted him in March. The sentences will run concurrently.
"We're very disappointed he has to spend any time in prison," says San Antonio solo McCrum, who sought probation for Roberts.
Bexar County District Attorney Susan Reed says the important thing in State v. Ted Roberts is the message that is sent. "Denying an application for probation for an attorney is a very, very strong message," Reed says. Reed adds, "I'm certain that our proof is going to sustain appellate review."
McCrum says Roberts will argue in his motion for a new trial that the charges prosecutors proved did not match the offenses they alleged in the indictment.
In 2005, a Bexar County grand jury indicted Roberts and his wife, Mary, also a lawyer, on theft charges based on allegations that the wife had sexual liaisons with four men whom the husband subsequently threatened with litigation unless they compensated him for emotional distress.
A second Bexar County grand jury reindicted the couple in 2006. That indictment named the four men with whom Mary Roberts, a solo, allegedly had affairs. The indictment alleged that between Oct. 1, 2001, and April 2, 2002, the couple unlawfully appropriated the four men's money by deception and by coercion, in violation of Texas Penal Code §§31.01 and 31.03.
Ted Roberts had threatened to file petitions under Rule 202 of the Texas Rules of Civil Procedure for possible suits against the men.
On March 14, a 226th District Court jury found Ted Roberts guilty on two counts of theft and one count of a continuing course and scheme to commit theft of $100,000 with regard to two of the men. But the jury found Roberts not guilty for the alleged threats against the other two men.
McCrum says the jury found Ted Roberts guilty, because he had told two of the men that he would give part of their money to a children's charity that Roberts created. Although Roberts deposited the money in an account for the charity, he subsequently withdrew the money when faced with financial difficulties, McCrum says. Roberts borrowed the money from the charity, the defense lawyer contends.
According to McCrum, Harle said during the June 4 sentencing hearing that he would consider changing Ted Roberts' sentence to probation if Roberts repays the charity.
McCrum says Ted Roberts will argue in his motion for a new trial that the state failed to prove the theft charges as alleged in the indictment. He says the state alleged in the indictment that Roberts violated Penal Code §§31.01(1)(A) and (B), which involve creating a false impression of fact or law or failing to correct a false impression.
At trial, the state "proved up" §31.01(1)(E), McCrum says. That statute addresses theft by deception by "promising performance" when the actor does not intend to do what he has promised.
McCrum contends the state did not give Ted Roberts notice that it would try to prove theft by deception because of failure to perform. The state also failed to prove intent -- that Roberts never intended to do what he had promised to do, McCrum says.
Tamara Strauch, the Bexar County assistant district attorney who prosecuted Ted Roberts, disagrees. "My opinion is we proved up 31.01(1)(A) and (B)," Strauch says. "That's what the jury found him guilty of." John Jay Douglass, a University of Houston Law Center professor who teaches criminal law, says the question is whether Ted Roberts intended at the time he took the money to use it for the charity as he had promised or had always intended to take the money.
But Douglass is skeptical of the defense's argument for a new trial. If the judge instructed the jury on the intent element and the jury found intent, Douglass says there is little opportunity on the facts for a new trial. Regardless, Douglass says, "If I were the defense, I would seek a new trial." Harle has set a July 2 trial date for Mary Roberts in the 226th District Court.
