Opinion
No. 11-07-00035-CR
Opinion filed December 11, 2008. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(b).
On Appeal from the 104th District Court Taylor County, Texas, Trial Court Cause No. 15518B.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
MEMORANDUM OPINION
Donald Ray Gill was indicted for theft in the amount of $1,500 or more but less than $20,000 enhanced by two prior felony thefts. Appellant pleaded not guilty and proceeded to a jury trial. The jury returned a guilty verdict, and the trial court assessed punishment at twenty years confinement in the Texas Department of Criminal Justice, Institutional Division. We affirm.
Issues on Appeal
Appellant raises two issues on appeal. First, appellant asserts that the evidence was legally and factually insufficient to sustain the jury's verdict. Next, appellant asserts that the trial court erred in allowing the State to present evidence of other crimes, acts, or wrongs alleged to have been committed by appellant.Background Facts
Jonathan Barrs received a flyer at his home. In that flyer, appellant advertised for construction work. Barrs contacted appellant regarding remodeling his house. Barrs wanted three separate projects done: (1) replace the fascia board around the exterior of the house; (2) prime and paint the exterior of the house; and (3) enclose the porch area, convert it to a master bath and utility room, and extend the living room. Appellant gave Barrs an estimate in the amount of $18,578. This estimate included all the materials and labor costs. Appellant was to begin work on the project by the end of September and finish the project in about three weeks. Barrs testified that he paid appellant a little over $6,000 in the first week. Barrs testified that he believed this money was for all the materials needed for the project. Barrs also testified that he paid over $3,000 in labor costs. Barrs testified that, by the end of November, he had paid appellant approximately $10,000 and only about a weeks' worth of work had been done on the project. Barrs testified that, the week before Christmas, progress was still not being made on the project. He testified that appellant presented him with another bill and told him it would take an additional $10,000 to finish the job.Admissibility of Evidence
Appellant argues that the trial court erred in allowing evidence of other crimes, acts, or wrongs alleged to have been committed by appellant. During the trial, the State offered evidence that appellant contracted with Emily McLaury to add a room to her house. Appellant gave her an estimate of $6,556 to perform the work she wanted done on her house. The job was to take two months. McLaury testified that she paid appellant $3,556 up front for materials but that she never saw any materials. She testified that, when she asked appellant about the materials, he told her that they had been bought but that he could not get them to her house because he did not have a trailer. McLaury offered to pick up the materials, but appellant never told her where the materials were. McLaury said that appellant later admitted that he never bought the materials. McLaury testified that she also paid appellant $416 for labor, but to her knowledge, many of the workers were not paid. McLaury also testified that, prior to the cement being poured, appellant told her she needed to pay an additional $1,284 for the cement. She stated that she was reluctant to do that because she considered the cement a material that she had already paid for. McLaury testified that, on the day that the cement company was at her house, she had her mother write a check for the cement. McLaury's mother made the check out to appellant, and appellant endorsed it. However, McLaury discovered later that appellant never paid the cement company for the cement. The cement company tried to get McLaury to pay the amount and threatened to put a lien on her home for the amount owed for the cement. McLaury further testified that she paid appellant $5,256 but only got a concrete slab that was not level and held standing water. She stated that appellant promised to either pay back the money or finish the job, but he did neither. Appellant objected to McLaury's testimony under TEX. R. EVID. 403 and 404(b). After a hearing outside the presence of the jury, the trial court found that the evidence was admissible under Rule 404(b) because it was relevant to motive, opportunity, intent, preparation, plan, knowledge, absence of mistake, and absence of accident. However, the trial court found that the evidence was too prejudicial to overcome its probative value under Rule 403. The trial court stated that it would reconsider its ruling after hearing more evidence. Later during the trial, the State re-urged the admissibility of the evidence, stating that appellant had opened the door by offering evidence that appellant performed quality work and that the McLaury job was mentioned during cross-examination of one of the State's witnesses. The trial court then found that the evidence was more probative than prejudicial and allowed the evidence. We review the trial court's ruling on the admissibility of evidence under an abuse of discretion standard. Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App. 2001); Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App. 1991). This standard requires an appellate court to uphold a trial court's admissibility decision when that decision is within the zone of reasonable disagreement. Powell, 63 S.W.3d at 438. Evidence of other crimes, wrongs, or bad acts is not admissible for the purpose of showing that the person acted in conformity therewith. Rule 404(b); Montgomery, 810 S.W.2d at 386-88. However, this evidence may be admissible when it is relevant to a "noncharacter conformity fact of consequence in the case," such as intent, motive, identity, opportunity, preparation, plan, knowledge, or absence of mistake or accident. Powell, 63 S.W.3d at 438; see Rule 404(b); Montgomery, 810 S.W.2d at 387-88. Evidence of extraneous offenses or prior bad acts may also be admissible to rebut a defensive theory. Moses v. State, 105 S.W.3d 622, 626 (Tex.Crim.App. 2003). Admissibility of evidence hinges on the relevancy of the evidence to a "fact of consequence" in the case. Rankin v. State, 974 S.W.2d 707, 709 (Tex.Crim.App. 1996). Other crimes, wrongs, or bad acts have noncharacter conformity relevance where it logically serves to make less probable defensive evidence that undermines an elemental fact. Powell, 63 S.W.3d at 438. Even if evidence is admissible under Rule 404(b), the trial court may exclude it if it determines that the probative value of such evidence is substantially outweighed by its unfair prejudice. Rule 403. In determining whether the probative value of evidence of an extraneous offense is outweighed by its prejudicial effect, we look to (1) how compellingly the evidence serves to make a fact of consequence more or less probable, (2) the potential the evidence has to impress the jury in some irrational but nevertheless indelible way, (3) the time the State will need to develop the evidence, (4) the force of the State's need for the evidence, and (5) if the misconduct was of such a nature that a jury instruction to disregard it for any but its proffered purpose would likely have been without effect. Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999); Montgomery, 810 S.W.2d at 389-90; Rickerson v. State 138 S.W.3d 528, 532 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd). Accordingly, when the record reveals one or more such relevant criteria reasonably contributes to a risk that the probative value of the tendered evidence is substantially outweighed by unfair prejudice, the evidence should not be admitted. Montgomery, 810 S.W.2d at 392-93. The trial court did not err in admitting McLaury's testimony. The evidence was admissible under Rule 404(b) to show appellant's intent and lack of accident or mistake. The evidence was not used to show appellant's propensity for committing crimes or his bad character in general. Appellant presented the defense that he did not have any intent to commit theft. He testified that he performed some work on the project but that weather and other circumstances beyond his control prevented him from performing on schedule. He also presented the defense that the cost of remodeling increased once he discovered how bad the house was in disrepair. The State used McLaury's testimony to show that appellant had committed the same acts against another homeowner. The evidence showed that appellant took money that he never intended to use and never did use for the project. Also, the evidence demonstrates that it was not an accident or mistake or the fault of unforeseeable natural causes that caused appellant not to perform on the contract. The evidence was admissible under Rule 403 because the probative value of the evidence was not outweighed by its prejudicial effect. Intent is often proven by circumstantial evidence. Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App. 1991). McLaury's testimony was very compelling to prove appellant's intent to commit theft rather than a failure to perform due to circumstances out of his control. The evidence was quickly and clearly presented such that it did not take too much time and was not confusing. Further, McLaury's testimony was not so outrageous that it would affect the jury in an indelible way, and a jury instruction likely would not have had any effect. The trial court did not err in allowing McLaury's testimony. We overrule appellant's second issue on appeal.Sufficiency of the Evidence
Appellant argues that the evidence is both legally and factually insufficient to support his conviction. In order to determine if the evidence is legally sufficient, we review all of the evidence in the light most favorable to the verdict and 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 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex.Crim.App. 2000). The factfinder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). The factfinder may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). To determine if the evidence is factually sufficient, we review all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex.Crim.App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Then, we determine whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11. A person commits a theft if he unlawfully appropriates property with the intent to deprive the owner of the property. TEX. PENAL CODE ANN. § 31.03(a) (Vernon Supp. 2008). Appropriation is unlawful if it is without the owner's effective consent. TEX. PENAL CODE ANN. § 31.03(b)(1) (Vernon Supp. 2008). Effective consent is consent by a person legally authorized to act for the owner. TEX. PENAL CODE ANN. § 31.01(3) (Vernon Supp. 2008). Consent is not effective if it is induced by deception or coercion. Section 31.01(3)(A). The definition of deception relevant to this case is:Promising performance that is likely to affect the judgment of another in the transaction and that the actor does not intend to perform or knows will not be performed, except that failure to perform the promise in issue without other evidence of intent or knowledge is not sufficient proof that the actor did not intend to perform or knew the promise would not be performed.TEX. PENAL CODE ANN. § 31.01(1)(E) (Vernon Supp. 2008). A theft conviction cannot stand when there is no evidence showing criminal intent. Ellis v. State, 877 S.W.2d 380, 383 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). A person acts with intent when it is his conscious objective or desire to engage in the conduct or cause the result. TEX. PENAL CODE. ANN. § 6.03(a) (Vernon 2003). A jury may infer intent from any facts that tend to prove its existence, such as the acts, words, and conduct of the defendant. Hernandez, 819 S.W.2d at 810. Proof of intent to deprive the owner of the property is determined at the time of the taking. Wilson v. State, 663 S.W.2d 834, 836-37 (Tex.Crim.App. 1984); Christensen v. State, 240 S.W.3d 25, 34 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd). Theft convictions in which the evidence shows only a contractual civil dispute require reversal for insufficient evidence when the evidence shows partial performance of the matter for which funds were tendered. Peterson v. State, 645 S.W.2d 807 (Tex.Crim.App. 1983). The critical distinction between conduct that is criminal versus civil in nature is whether the record shows deception and not merely a failure to perform. Phillips v. State, 640 S.W.2d 293, 294 (Tex.Crim.App. 1982); Webb v. State, 752 S.W.2d 208, 210 (Tex.App.-Houston [1st Dist.] 1988, pet. ref'd). While appellant partially performed on the contract, there is evidence that he never intended to complete the contract. First, appellant did not own a construction company. The flyer that he placed at Barrs's home and in which Barrs used to contact appellant to do the work used the name of Gill Construction. However, when Barrs contacted the city about the construction permits, he discovered that the permits were filed under a company called Raydon Incorporated. This company was out of Breckenridge, Texas, and appellant had no association with the company. The similarities between Barrs's and McLaury's experiences with appellant demonstrate his intent to deprive the owner of his property. Appellant contracted with Barrs and McLaury to remodel their houses and was paid money up front for materials. Barrs testified that he paid appellant over $7,000 for materials but ended up with only around $2,500 worth of materials. Barrs testified that appellant told him that he had purchased all the materials needed for the job but that they did not have anywhere to store them at Barrs's house. Appellant first gave a similar story to McLaury when asked about the materials appellant was supposed to have bought for her remodeling project. Later, appellant admitted to never using her money to buy the materials. Barrs and McLaury paid appellant for labor as the project progressed; however, both Barrs and McLaury testified that very little work was done on the projects. Also, there was evidence that many of appellant's workers did not get paid. Barrs testified that he paid one of appellant's workers $120 because the worker kept coming to Barrs for money, stating that appellant would not pay him. McLaury also testified that, to her knowledge, many of appellant's workers were not paid. This evidence shows that appellant was using the money he received for something other than the projects he had contracted to work on. See Baker v. State, 986 S.W.2d 271 (Tex.App.-Texarkana 1998, pet. ref'd) (theft conviction was supported by evidence that contractor took the money to use for his own purpose). Considering the entire record, there is legally and factually sufficient evidence to show that appellant appropriated Barrs's property with the intent to deprive him of that property. The evidence shows a pattern of deception by appellant, not just a failure to perform. The similar instances in which appellant contracted with homeowners and his actions after the contracts were signed establish his intent to deprive Barrs of his property. We overrule appellant's first issue on appeal.
Conclusion
We affirm the judgment of the trial court.