RAUL TORRES URIAS v. THE STATE OF TEXAS (2017)

MEMORANDUM OPINION

The jury convicted Raul Torres Urias of the offense of theft of $20,000 or more but less than $100,000. He elected for the trial court to assess punishment, and the trial court assessed punishment at confinement for five years and ordered $70,000 in restitution to the property owner, Samuel Leyva. The trial court then sentenced Appellant. On appeal, Appellant argues that the evidence was legally insufficient to prove beyond a reasonable doubt that he intended to unlawfully exercise control over Leyva's property without Leyva's effective consent. We affirm.

I. The Charged Offense

The grand jury indicted Appellant for unlawfully acquiring and exercising control over Leyva's property in the amount of more than $20,000 but less than $100,000 without the effective consent of Leyva and with the intent to deprive him of his property. A person commits theft if he “unlawfully appropriates property with intent to deprive the owner” of the property. TEX. PENAL CODE ANN. § 31.03(a) (West Supp. 2016). This appropriation of property is unlawful if it is done without the “owner's effective consent.” Id. § 31.03(b)(1). Consent is not effective if it is induced by deception. Id. § 31.01(3)(A). Deception is present in a transaction when an actor (1) uses words or conduct to create a false impression of law or fact that will likely affect the judgment of another person in the transaction and that the actor does not believe to be truthful or (2) promises performance that he does not intend to perform, or knows will not be performed, that is likely to affect another's judgment in the transaction. Id. § 31.01(1)(A), (E).

II. Evidence at Trial

Leyva and Appellant first met at Leyva's restaurant in Midland. In 2011 or 2012, Appellant offered to acquire a lot and build a house for Leyva for $250,000; the offer was $200,000 if Leyva bought his own lot. Appellant promised to use a new wall material that would make the house much cheaper to build. Leyva gave $10,000 to Appellant to locate and purchase a lot, but Appellant never purchased the lot or returned the money. Leyva purchased a lot for $50,000, but the lot did not have electricity. Leyva explained that the house would have 2,800 square feet and that Appellant had shown Leyva blueprints of a home that included a swimming pool and a garage. Leyva was asked by Appellant to choose from various building materials. Appellant told Leyva that the house would take three months to construct. Leyva agreed to pay lump sum amounts to Appellant as needed during the construction. Leyva had picked out a house design from a magazine and, in December, agreed to have Appellant build the house, but Appellant did not order the building plans until February. Later, in March 2013, Appellant began construction. By early May, Leyva had paid Appellant between $125,300 and $135,000.

A. Problems arise in construction of Leyva's home.

Three months after construction began, and given the large amount of money Leyva had paid to Appellant at that time, Leyva became concerned about the progress of construction when the second floor had barely been started and the structure had no roof. Leyva told Appellant that the house would need to be more complete before Leyva made any additional payments. He also asked Appellant for purchase receipts to confirm expenditures, but Appellant never provided them. Appellant asked Leyva to pay for windows and rock before Appellant left town for a trip. Leyva paid $15,000 for the windows and rock. Later, Appellant claimed that a tornado in Oklahoma had delayed the delivery of the windows and rock. Appellant never delivered the windows or the rock to Leyva; he “abandoned the project” and disappeared. In addition, Appellant never provided the doors that Leyva had paid him to procure and install.

Leyva continued to contact Appellant until September for an update on when Appellant would finish construction of the house. In response, Appellant explained that he was working to get money to finish the house. When asked for receipts, Appellant stated that he had invested the money, but he did not provide any additional information. Eventually, Leyva asked Appellant to return $70,000. Appellant said that he would try to return the money, but he never did. In their last phone conversation, Appellant told Leyva that he was working on another project to get money so that he could finish the construction of Leyva's house. At trial, Leyva testified that he thought he should get back $70,000 for work and materials that Appellant never provided.

B. Several people complained about Appellant's failure to properly complete work and pay for materials on various projects.

The State called several witnesses who had had problems with Appellant's work. Nolberto Eloy Ramos contracted with Appellant for him to build a second floor onto Ramos's home for a cost of $85,000. Appellant told Ramos that it would take up to three months to complete construction, but after more than four months, the new second floor did not have a roof. Ramos then cancelled the job and filed a lawsuit against Appellant to recoup some of the money. Ramos was awarded over $138,000 in damages in a default judgment by the court.

Juan Gilbert Zarate had also hired Appellant to do construction work for him. He stated that Appellant used photographs to represent his ability but that the work did not live up to Appellant's representation. After Zarate paid Appellant $15,000–$20,000 for him to build a kitchen island, install countertops, and complete tile work in a bathroom, the kitchen island broke in half. Zarate later discovered that Appellant had improperly installed the bathroom tile without any waterproofing, which created a health hazard. Zarate cancelled the job and requested that Appellant return $5,000 because Zarate had to hire another professional to redo the tile work. However, Appellant never gave Zarate the $5,000.

The State also called Cameron Haddock, the owner of ThermaSAVE Worldwide, a building components manufacturer in Alabama, who explained that Appellant signed a $16,210 contract for ThermaSAVE to provide wall panels for the Leyva home. ThermaSAVE typically required fifty percent of the contract amount up front, and the remaining fifty percent would be paid on delivery. Haddock testified that Appellant paid the initial installment but never paid the remaining amount. We note that Appellant had collected $30,000 from Leyva for the wall materials. Haddock listed two excuses Appellant made for not making the final payment: (1) surprise that the money was due on Thursday instead of Friday and (2) lack of funds because Appellant would not get another draw from Leyva until the panels were fully installed. After Appellant failed to pay, Haddock mailed a demand letter to him, but the outstanding balance was never paid.

C. Detective Manuel Beltran investigated Leyva's complaints against Appellant.

Manuel Beltran, a detective with the Midland Police Department, investigated Leyva's complaints against Appellant. Detective Beltran spoke to Appellant and attempted to compare the payments Appellant received to construction purchases Appellant made, but Appellant was unable to produce any invoices or receipts. Detective Beltran also learned that the blueprints Appellant used for Leyva's 2,908-square-foot home were originally designed for a 3,775-square-foot home. In addition, the home construction did not resemble the blueprint model home that Appellant had promised to build for Leyva.

At trial, Detective Beltran, who had some construction experience, gave a lay opinion about the plausibility, profitability, and speed of home construction. He testified that “it would have been almost impossible to build a 2,900 square-foot home with the plans for a 3,775 foot home. There is a lot of re-engineering involved.” Discussing profitability, Detective Beltran stated that, for $200,000, the planned home promised by Appellant would have been impossible to build at a profit. He stated:

At 2,900 square-feet, it would be $68 a square-foot, which unless all you're going to do is buy the materials and pay no one any labor, have no overhead, it literally would be almost impossible to complete that house. And [Appellant] would have had that knowledge from the beginning if he had any contracting experience. [Appellant] quoted he had built six to seven houses, similar houses.

As to speed of construction, Detective Beltran added that a home like this could not be built in three months. In addition, Appellant told Detective Beltran that, in the Midland area, the average price per square foot for new home construction was $145–$150 or more, which was much higher than the $68 per square foot that Appellant charged Leyva.

III. Standard of Review

The standard of review for sufficiency of the evidence is whether any rational trier of fact could have found Appellant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found, beyond a reasonable doubt, each element of the offense. Jackson, 443 U.S. at 319. The trier of fact is the sole judge of the weight and credibility of the witnesses. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Polk v. State, 337 S.W.3d 286, 289 (Tex. App.—Eastland 2010, pet. ref'd). Any conflicting inferences that are raised by the evidence are presumed to have been resolved in favor of the verdict. See Jackson, 443 U.S. at 326; Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999) (citing Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993)).

IV. Analysis

On appeal, Appellant claims that a breach of contract does not amount to theft and that the State failed to prove that he intended to deprive the owner of the property at the time the property was taken. See Wirth v. State, 361 S.W.3d 694, 697 (Tex. Crim. App. 2012). He also asserts that any prior breaches of contract did not prove an intent to commit theft. A claim of theft that involves unfulfilled contractual obligations requires the State to prove more than the actor's intent to deprive the owner of property and the actor's subsequent appropriation; it also requires the State to prove that the appropriation was a result of fraud or false pretext and that the accused intended to deprive the owner of the property at the time the property was taken. Taylor v. State, 450 S.W.3d 528, 536 (Tex. Crim. App. 2014) (citing Wirth, 361 S.W.3d at 697).

Even though a person may not have had the requisite intent at the time he formed a contract, the person may be found guilty of theft if he later induces the customer to make additional payments on the contract while, at that time, intending not to perform or knowing that he will not perform. Id. at 537. Additionally, “[i]t is unnecessary for every fact to point directly and independently to the guilt of the accused; it is enough if the finding of guilt is warranted by the cumulative force of all the incriminating evidence.” Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013) (alteration in original) (quoting Winfrey v. State, 338 S.W.3d 687, 694 (Tex. App.—Beaumont 2011), rev'd, 393 S.W.3d 763 (Tex. Crim. App. 2013). Therefore, not all of the evidence must point toward the intent to deprive. Id.

The State argues that Appellant's intent to deprive Leyva of his property was apparent when Appellant requested and received $15,000 to source windows and rock but then did not provide the windows or rock and failed to install those items. After he received payment, Appellant represented to Leyva that he would source the windows and rock in order to install them at Leyva's house. Instead, Appellant took the $15,000 payment and disappeared. With these facts, the jury could infer that Appellant's appropriation of Leyva's money was done without Leyva's effective consent and was deceptive because Appellant's disappearance indicated that he never intended to perform. Furthermore, Appellant also demanded a payment of $30,000 for “wall materials” from Leyva, which Leyva paid. Appellant's failure to fully pay ThermaSAVE for wall-building materials was uncontested, and the jury could infer that Appellant kept the remainder of the $30,000 after paying $8,105 to ThermaSAVE. Although Leyva did not provide a date when he paid the $30,000 to Appellant, Exhibit Nos. 6, 10, 11, and 18 showed that the wall material was not completely installed. Moreover, Leyva had given $10,000 to Appellant to locate and purchase a lot, but Appellant never purchased the lot or returned the money. Leyva ended up buying the lot that Appellant had located.

In response to Appellant's argument that prior breaches of contract did not prove his intent to commit theft, we look to the record for all events that occurred before, during, and after the commission of the offense. Taylor, 450 S.W.3d at 536. We may rely on the actions of the defendant that show an understanding and common design to commit the theft. Id. Here, the collective evidence supported the jury's verdict that Appellant intended to commit theft. Although he was allegedly an experienced contractor, Appellant did the following:

(1) priced the home at less than fifty percent of the going market rate per square foot;

(2) provided an unrealistic three-month time frame for completion of the project;

(3) “invested” Leyva's money and failed to produce purchase receipts for materials;

(4) failed to complete construction of the house;

(5) took money to purchase and install wall material and purchase and install windows and rock, but never fully paid for the wall material and never delivered or installed the windows and rock; and

(6) disappeared after he had received the $15,000 payment for windows and rock.

The State outlined how Leyva was treated the same as Haddock, Ramos, and Zarate, who all testified how Appellant took a large up-front benefit but later ceased contact with them when they tried to hold him accountable. Ramos said that Appellant told him that the remodel would take two to three months, took an $85,000 advance payment, and then disappeared before constructing the second-floor roof. In the situation with Haddock, Appellant received $16,210 in construction material, but he only paid $8,105 for that material. For Zarate, Appellant received payment but did inferior work, and Zarate had to have another contractor fix the inferior work and never recouped any money paid to Appellant. After a review of the record, we hold that the State adduced sufficient evidence for a rational jury to find beyond a reasonable doubt that Appellant unlawfully appropriated more than $20,000 from Leyva with the intent to deprive Leyva of the money and that the appropriation was a result of fraud or false pretext. We overrule Appellant's single issue on appeal.

V. This Court's Ruling

We affirm the judgment of the trial court.

MIKE WILLSON JUSTICE