Opinion
No. 06-17-00109-CR
11-30-2017
CHAD ALAN CAPPIELLO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 8th District Court Hopkins County, Texas
Trial Court No. 1725812 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
Chad Alan Cappiello signed an agreement with Julie and Mary Doss to remodel their home. The Dosses paid Cappiello $2,350.00 on signing the contract and another $13,575.00, as a fifty-percent installment payment. Cappiello never started the work and refused to return the Dosses' money. As a result, a jury convicted Cappiello of theft of property in the amount of $1,500.00 or more, but less than $20,000.00. Cappiello was sentenced to twenty-four months' confinement in state jail and was ordered to pay $2,350.00 in restitution.
See Act of May 29, 2011, 82d Leg., R.S., ch. 1234, § 21, 2011 Tex. Gen. Laws 3302, 3310 (amended 2015) (current version at TEX. PENAL CODE § 31.03 (West Supp. 2017).
Cappiello appeals from this conviction and, in companion case number 06-17-00110-CR, also appeals a second conviction for theft of the $13,575.00 installment payment. Cappiello has filed a single brief, in which he raises issues common to both of his appeals. Specifically, Cappiello argues (1) that the jury's verdict is supported by insufficient evidence, (2) that the trial court erred in admitting evidence of extraneous offenses to demonstrate the intent to commit theft, and (3) that the judgment incorrectly reflects the statute of offense. We conclude that legally sufficient evidence supported the jury's verdict, that the trial court properly admitted the evidence of extraneous offenses, and that the judgment must be modified. As modified, the trial court's judgment is affirmed.
The standard of review for analyzing legal sufficiency claims and the facts pertaining to this case are set forth in detail in our opinion in cause number 06-17-00110-CR. Here, the State's indictment alleged that Cappiello unlawfully appropriated "Check Number 2376" from Mary and Julie Doss, without their effective consent, by deception and with intent to deprive them of the property. Thus, in order to establish that Cappiello committed theft, the State had the burden to establish that (1) Cappiello, (2) with intent to deprive the Dosses of property, (3) unlawfully appropriated property (4) without their effective consent. See Ehrhardt v. State, 334 S.W.3d 849, 852 (Tex. App.—Texarkana 2011, pet. ref'd). In cause number 06-17-00110-CR, we concluded that the evidence was legally sufficient to support the jury's verdict of Cappiello's guilt with respect to the $13,575.00 installment payment. Likewise, a review of the same evidence leads us to the conclusion that it was legally sufficient to support the jury's verdict of guilt in this case, which was based on the $2,350.00 payment. Accordingly, we overrule Cappiello's first point of error.
Next, we addressed Cappiello's second issue in detail in cause number 06-17-00110-CR. For the reasons stated therein, we likewise conclude that the trial court did not abuse its discretion in admitting evidence of extraneous offenses under Rule 404(b). See TEX. R. EVID. 404(b).
Last, we also sustained Cappiello's third point of error and modified the judgment in cause number 06-17-00110-CR to reflect that the statute of offense was Section 31.03(e)(4)(A) of the Texas Penal Code. Similarly, the record in this case also reflects that the correct statute of offense is Section 31.03(e)(4)(A) under a prior version of the theft statute. See Act of May 29, 2011, 82d Leg., R.S., ch. 1234, § 21, 2011 Tex. Gen. Laws 3302, 3310 (amended 2015) (current version at TEX. PENAL CODE § 31.03.
Under either the prior or current version of the theft statute, Cappiello's offense was classified as a state jail felony under Section 31.03(e)(4)(A).
We modify the trial court's judgment to reflect that the statute of offense is Section 31.03(e)(4)(A) of the Texas Penal Code. As modified, the trial court's judgment is affirmed.
Josh R. Morriss, III
Chief Justice Date Submitted: November 20, 2017
Date Decided: November 30, 2017 Do Not Publish