Elmer Brown v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-12-00532-CR

ELMER BROWN APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM COUNTY CRIMINAL COURT NO. 4 OF DENTON COUNTY

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MEMORANDUM OPINION 1

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Appellant Elmer Brown appeals his conviction for deceptive business

practice. We affirm.

Background Facts

In early 2007, Bonnie Serben sought bids from contractors to repair and

remodel her mother’s house. In May 2007, she received a bid from Appellant’s

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See Tex. R. App. P. 47.4.
company, Brown and Company. Appellant proposed to, among other things,

replace the roof and siding, replace the exterior doors and windows, replace the

septic tank system, install skylights, perform landscaping, rewire the electrical

system, install a HVAC system, replace sheetrock and insulate the walls, install

cabinets and bathroom fixtures, and refinish the hardwood floors.

Serben and Appellant negotiated a contract for Appellant’s services.

Serben agreed to pay Appellant $118,176. The contract stipulated that Serben

would pay $35,963 of the contract price as a deposit “to be used by [Appellant]

for the purchase of all exterior materials, equipment, and tools required and

permits necessary to begin the Work.” Serben agreed to pay for the rest of the

services as they were completed upon submission of a payment request by

Appellant. The contract stated,

The submission of a payment request by Contractor will constitute a
representation by Contractor to Owner that the Work has progressed
to the point indicated and that, to the best of Contractor’s
knowledge, information[,] and belief, the quality of the Work is in
accordance with this Agreement and generally accepted industry
standards applicable in Texas.

The parties agreed that Serben would retain 15% of each invoice amount for

thirty days after completion of the entire project. The contract also provided for

an early completion bonus if Appellant completed the work in one hundred

working days and a late completion penalty if Appellant did not finish the project

within 146 working days. The parties signed the contract in June 2007.

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 Serben received an invoice for the deposit ($30,568.55 after the 15%

retainage), which she paid by check on June 16, 2007. Serben received a

second invoice on June 26, 2007, for $6,800 for the installation of the roof. She

paid that invoice by check on July 2, 2007. Serben received a third invoice also

dated June 26, 2007 for $24,990 for “interior demolition,” “clear[ing]

debris/shrubs,” “remov[ing] trees/prun[ing] trees,” and electrical wiring and

materials, air conditioning unit and duct materials and accessories, and copper

lines for plumbing. Serben paid that invoice by check on July 7, 2007.

In September 2007, Serben requested and received a cost report from

Appellant showing how the funds had been applied. In the cost report, Appellant

stated that he had performed and bought material for $46,671 worth of work,

including installing the skylights, cabinets, and the HVAC system and performing

electrical and plumbing work, none of which had actually been performed. The

cost report also included $5,099 for “Administrative.”

Also in September 2007, Serben requested a contract change order

adding $6,339 of work to the contract. On September 14, 2007, Serben received

a fourth invoice for $12,196.95 for siding, tree trimming, insulation and drywall

installation, and a number of the items from the change order. Serben paid the

invoice by check on September 15, 2007.

In early October 2007, Serben attempted to reach Appellant because

“nothing was getting done” on the house. She called him “[n]umerous times,” but

he did not answer the phone and eventually the number was disconnected. On

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October 8, 2007, Appellant emailed Serben and said that he had been away at

his grandmother’s funeral in Arkansas and that he had “a very ag[gressive]

schedule to make up for lost time.” He told Serben that he was expecting to

complete the project some time in November. Serben testified that Appellant did

no more work after he sent that email. None of the things that Appellant said in

the email he would complete, such as installing the HVAC system, completing

the plumbing, installing the sheetrock, and finishing the carpentry work, were

completed.

On November 20, 2007, Serben’s husband, John, emailed Appellant a

letter regarding what work still needed to be completed on the house. The letter

said,

It continues to be very difficult to contact you. You don’t answer your
cell phone and never seem to empty your cell phone mailbox, and,
as a result, we cannot leave messages for you! . . . In addition, you
have not shown up for several meetings with us that you requested.

John told Appellant,

It is obvious that there has been no activity by you [on the house] in
nearly two months. . . . Your delays have caused us considerable
anxiety, problems, time, money, disruption to our personal plans,
inconvenience, etc[.], over your inability, desire, and wherewithal [to]
do what you committed to do. And, may I remind you, that we
have paid you in advance, far more than the work completed
thus far can justify.

In the email, John also said, “You have not delivered to us copies of paid

invoices and the written proof of releases from your subcontractors as we have

requested several times and is specified in our contract with you.” He told

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Appellant that under the contract, he had until January 24, 2008 to complete the

project.

On November 24, 2007, Appellant responded to the letter. He told the

Serbens that he had been waiting for the windows to be installed and that he had

“everyone scheduled to go in at the end of th[at] week.” He disputed the

Serbens’ calculation of the last day of the contract period but said, “Once we

begin, the final product should not take long to complete.” Serben received no

further communications from Appellant.

On December 3, 2007, Serben emailed Appellant again and stated that still

no more work had been done on the house. She said, “At this point, we would

be happy to cancel the contract and either get the money we advanced for

materials returned to us, or alternately, the materials that you purchased with that

money!” She received no response from Appellant.

On January 23, 2008, Serben sent Appellant a letter stating that she was

cancelling the contract. Serben also filed a complaint against Appellant with the

Better Business Bureau and with the Flower Mound Police Department. A police

detective assigned to the case spoke to Appellant by phone. Appellant told the

detective that he had gotten sick and had turned the project over to somebody

else. The detective asked to speak to Appellant in person. Appellant said he

was in Houston for two weeks but that he would call when he got back to town.

When the detective did not hear from Appellant, he forwarded the case to the

District Attorney’s office.

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 In February 2009, Appellant was charged with committing a deceptive

business practice. Trial was originally set for November 2011 but was reset

repeatedly until it was finally set for August 7, 2012. On July 30, 2012, Appellant

filed a motion for continuance stating,

[Appellant] is a severe diabetic who has been hospitalized numerous
times since May 2012 in attempt to deal with the effects of his
diabetes. [Appellant] has a cataract in his left eye that has
completely blinded him and his right eye has a cataract that is
diminishing his eyesight as well. [Appellant] has been scheduled for
oral surgery on his jaw for August 1, 2012; retinal surgery on his
right eye for August 7, 2012; and cataract surgery for August 31,
20[12].

The trial court spoke on the phone to Appellant’s doctors and, at a pretrial

hearing, told the parties that “they said he should be fine to come up here and sit

with [his attorney] on the day after” the August 7 surgery. The trial court denied

Appellant’s motion for continuance and set trial for August 9, 2012.

On August 9, 2012, before trial began, Appellant reurged his motion for

continuance. Appellant’s wife testified that he had been prescribed hydrocodone

and that he did not appear to have a rational, cogent understanding of things she

would tell him because he was on so many medications. She did not believe that

he was able to aid his lawyer in effectively representing him. Appellant’s attorney

testified that he had attempted to go over documents with Appellant but “he

would act as if he thought he understood what was in it, but appeared to be

confused by what the document was.” Based on Appellant’s inability to see or

read documents or seemingly understand what his attorney would tell him, his

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attorney testified, “But I don’t believe, based upon all of those things, that I can

effectively represent [Appellant] in his current condition.” The trial court reviewed

the side effects of hydrocodone but noted that Appellant’s doctors “did not see fit

to tell [the court] that they expected him to have such reactions and be unable to

perform—be here today.” The trial court denied the motion for continuance

again.

A jury convicted Appellant of a deceptive business practice. The trial court

sentenced him to spend 360 days in jail, suspended the punishment, and placed

Appellant on community supervision for twenty-four months. Appellant then filed

this appeal.

Discussion

I. Competency inquiry

In Appellant’s first issue, he argues that the trial court erred by denying his

motion for continuance. Specifically, he argues that the trial court erred by failing

to conduct an informal competency inquiry. We review a trial court’s ruling on a

motion for continuance and its failure to inquire into a defendant’s competency to

stand trial under an abuse of discretion standard. Moore v. State, 999 S.W.2d

385, 393 (Tex. Crim. App. 1999), cert. denied, 530 U.S. 1216 (2000). A trial

court abuses its discretion if its decision is arbitrary or unreasonable. Lewis v.

State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995).

Appellant had the burden to prove by a preponderance of the evidence

that he was incompetent to stand trial. See Tex. Code Crim. Proc. Ann. art.

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46B.003(b) (West 2006); Morris v. State, 301 S.W.3d 281, 285 (Tex. Crim. App.

2009). Incompetency to stand trial is defined as a lack of

(1) sufficient present ability to consult with the person’s lawyer with a
reasonable degree of rational understanding; or

(2) a rational as well as factual understanding of the proceedings
against the person.

Tex. Code Crim. Proc. art. 46B.003(a). A defendant is presumed to be

competent unless proved incompetent by a preponderance of the evidence. Id.

at 46B.003(b). However, “any ‘suggestion’ of incompetency to stand trial calls for

an ‘informal inquiry’ to determine whether evidence exists to justify a formal

competency trial.” Turner v. State, No. AP-76580, 2013 WL 5808250, at *11

(Tex. Crim. App. Oct. 30, 2013); see Tex. Code Crim. Proc. art. 46B.004 (West

Supp. 2013) (“On suggestion that the defendant may be incompetent to stand

trial, the court shall determine by informal inquiry whether there is some evidence

from any source that would support a finding that the defendant may be

incompetent to stand trial.”). “‘Some evidence’ is a low bar; it requires a showing

of only a quantity more than none or a scintilla.” Brown v. State, No. PD-1723-

12, 2014 WL 1032054, at *5 (Tex. Crim. App. Mar. 19, 2014) (citing Turner, 2013

WL 5808250, at *11). Evidence showing incompetence may include truly bizarre

behavior by the defendant or a recent history of “severe mental illness or at least

moderate mental retardation.” Montoya v. State, 291 S.W.3d 420, 425 (Tex.

Crim. App. 2009), superseded by statute on other grounds as stated in Turner,

2013 WL 5808250, at *11 & n.31.

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 The record shows that the trial court conducted an informal inquiry into

Appellant’s competency to stand trial, once on July 30, 2012, and again on

August 9, 2012. See Grizzard v. State, No. 01-06-00930-CR, 2008 WL 2611865,

at *5 (Tex. App.—Houston [1st Dist.] July 3, 2008, no pet.) (mem. op., not

designated for publication) (holding that trial court conducted an informal inquiry

when it allowed testimony from defendant’s wife and doctor concerning

defendant’s “voluntary overdose of prescription medication”).

The trial court spoke with Appellant’s doctor on July 30, 2012. The doctor

told the trial court that Appellant “should be fine to come up here and sit with [his

attorney]” and that he “could come to trial as long as he didn't have to drive.”

Appellant’s attorney stated his concern that Appellant would be unable to see,

and the trial court said,

THE COURT: Well, you’d better go call his doctor and get
them to confirm with you how much they—but I want to resolve this
today, yeah.

[APPELLANT’S ATTORNEY]: That’s fine.

THE COURT: I mean, if he’s got one eye and can see, I
mean, you know . . . .

[APPELLANT’S ATTORNEY]: No, no, as long as he can see,
I don’t care whether it’s one eye or he can see out of his ear. I just
need him to be able to see.

THE COURT: Okay. Okay. Yeah, okay. Y’all go talk and
you can go call your doctor and find out how good a shape he’s
going to be, but right now I’m wanting to start this next Thursday and
do this case and get it done.

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 On August 9, 2012, the trial court also heard testimony from Appellant’s

wife and his attorney. Appellant’s wife testified that Appellant had diabetes and

high blood pressure and that he was taking hydrocodone. She said that

Appellant’s surgeries on his eyes had interfered with his vision and that he had

headaches and was dizzy. She testified that Appellant’s discharge instructions

from the surgery center were “for him to basically not do anything strenuous,

don’t lift anything heavy, rest.” She said that Appellant did not appear to have a

rational, cogent understanding of things she said to him. She said,

And then a lot of times I talk to him and I ask him something, I
have to repeat myself because sometimes he’s like, “I don’t
understand what you said. What are you talking about?” That’s not
him because usually, any other time, he’s—you know, he’s quick to
pick up and understand what I’m saying.

She also testified that she showed him some documents, which he asked her to

read to him, and although it “took him a while to even give [her] an answer,” he

told her the documents needed to go to his attorney.

Appellant’s attorney testified that Appellant could not see or read

documents he showed him. He said that Appellant “would act as if he thought he

understood what was in [a document], but appeared to be confused by what the

document was.” He said, “I can say with all certainty he is not able to assist me

to effectively represent him in this case today.”

Appellant also testified at the hearing. He said, “I want to let the Court

know that I understand this case and how long it’s been going on, back and forth.

. . . [A]nd I understand the court process.” He explained,

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 [My attorney] knows, and I don’t think the Court or the State
know, that I’ve been ready to get this case over with since inception,
since it was brought forth and explained to me originally some years
ago.

That’s pretty much what I wanted to say. I have been ready.
Unfortunately, my health has taken a turn.

Appellant testified,

I couldn’t understand some of the stuff that would normally be
simple. Even this earlier here, I couldn’t—I lost the train of thought
in the middle of a sentence. And that’s not me. I’m normally ready
and on point, but this isn’t me. And I’m at a severe disadvantage
being here, and I think the Court should know that.

The trial court stated that it was going to look at the Physicians Desk Reference

for the side effects of Appellant’s prescription drugs. The trial judge said, “I need

to look at that and see if hydrocodone would interfere with his mental abilities,

because if it does, I’m going to continue this case. I don’t want him to be able to

not understand what’s going on from a legal—from a medical position.” He read

from the book,

[T]he most frequently reported adverse reactions include
lightheadedness, dizziness, sedation, nausea, and vomiting. And
then under Central Nervous System, it says drowsiness, mental
clouding, lethargy, impairment of mental and physical performances,
anxiety, fear, psychic dependency, and mood changes.
But I have talked—and in speaking to the doctors, they have
not told me—they did not see fit to tell me that they expected him to
have such reactions and be unable to perform—be here today.

Although some evidence showed that Appellant’s illnesses had diminished

his vision and his medications may have diminished his comprehension skills, the

testimony from Appellant, his wife, and his attorney was not evidence of the type

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supporting an incompetency finding such as “truly bizarre behavior” or “severe

mental illness or at least moderate mental retardation.” Montoya, 291 S.W.3d at

425; see also Grizzard, 2008 WL 2611865, at *6 (holding that trial court did not

abuse its discretion by not finding appellant incompetent when, among other

things, “appellant had met with his trial attorney immediately before the

sentencing phase began and the attorney represented to the court that appellant

was aware of what was going on and wanted to participate in the punishment

phase of the trial, but due to his medical condition was not able to be present”).

That Appellant was slow to comprehend things and that he had trouble recalling

details did not render him incompetent to stand trial. See Morris, 301 S.W.3d at

292–93 (stating that a defendant’s amnesia is akin to “missing evidence,” which

does not give rise to a finding of incompetence) (citing Morrow v. State, 293 Md.

247, 254, 443 A.2d 108, 112 (1982)). Appellant’s own testimony was that he

understood the nature of the proceedings. Appellant’s attorney stated that

Appellant could not effectively assist in his representation, but his statement to

the trial court that he “just need[ed Appellant] to be able to see” demonstrates

that his concern was with Appellant’s physical health, not his mental health. The

trial court noted the possible side effects of hydrocodone, he also noted that

Appellant’s doctor did not say that Appellant was suffering from any mental

impairment.

The record is completely devoid of any evidence that Appellant suffered

from mental illness, mental retardation, or that he committed any truly bizarre

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acts. Although Appellant’s wife testified that he did not have a rational

understanding of things, she also testified that when she showed him documents,

he understood what they were and that they needed to go to his attorney. And

although his attorney testified that Appellant was unable to assist him in his

representation, the trial court stated, “From the evidence I have . . . , I have the

direct impression that [Appellant] is very uncooperative with his attorney.”

Appellant’s attorney did not testify that Appellant was unable to answer questions

or provide information to such an extent that he could be found to have no

reasonable degree of rational understanding. In fact, Appellant’s attorney told

the court that he did not think that Appellant needed a formal competency

hearing. He said, “There’s a whole process for that that involves either

somebody being hospitalized and examined or having an independent expert

appointed to look at him. I don’t know that we need to get to that . . . .”

Appellant’s slowed responses because of his illnesses did not rise to the

level of legal incompetence. See Tex. Code Crim. Proc. art. 46B.003(a); see

also Gaines v. State, No. 02-02-00498-CR, 2004 WL 2320367, at *5 (Tex.

App.—Fort Worth Oct. 14, 2004, pet. ref'd) (mem. op., not designated for

publication) (“[A] learning disability or attention deficit hyperactivity disorder is an

insufficient basis to claim incompetence to stand trial.”). The trial court told

Appellant’s attorney at the July 30, 2012 hearing to call Appellant’s doctor to get

a statement from the physician that Appellant would be unable to stand trial.

Appellant did not provide any such statement at the August 9, 2012 hearing. In

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fact, Appellant’s testimony established his self-professed ability to understand the

proceedings.

The court twice performed an informal inquiry and sought the opinion of

medical professionals who had treated Appellant. The trial court’s reliance on

the doctor’s opinion that Appellant could attend trial and its own assessment of

the credibility of the witnesses was not an abuse of discretion. See Little v.

State, No. 02-12-00086-CR, 2013 WL 5593297, at *3 (Tex. App.—Fort Worth

Oct. 10, 2013, no pet.) (mem. op., not designated for publication) (“But Little

points to nothing in the record that would compel this court to ignore the trial

court’s firsthand factual assessment of his mental competency, a finding that this

court is bound to afford great deference to, or the trial court’s reliance of an

expert’s determination that he was competent to stand trial.”) (citing McDaniel v.

State, 98 S.W.3d 704, 712 (Tex. Crim. App. 2003)). It was likewise not an abuse

of discretion to refuse to grant the motion for continuance to conduct a formal

incompetency hearing. We overrule Appellant’s first issue.

II. Sufficiency of the evidence

In Appellant’s second issue, he argues that the evidence supporting the

finding that he had the required mens rea is insufficient. In our due-process

review of the sufficiency of the evidence to support a conviction, we view all of

the evidence in the light most favorable to the verdict to 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, 99 S. Ct. 2781,

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2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013). In

determining the sufficiency of the evidence to show an appellant’s intent, and

faced with a record that supports conflicting inferences, we “must presume—

even if it does not affirmatively appear in the record—that the trier of fact

resolved any such conflict in favor of the prosecution, and must defer to that

resolution.” Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). We

must review circumstantial evidence of intent with the same scrutiny as other

elements of an offense. Laster v. State, 275 S.W.3d 512, 519–21 (Tex. Crim.

App. 2009) (overruling Margraves v. State, 34 S.W.3d 912, 919 Tex. Crim. App.

2000)); see Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999)

(“Circumstantial evidence, by itself, may be enough to support the jury’s

verdict.”). “In a sufficiency analysis, all of the evidence admitted at trial to

support the conviction should be reviewed equally on appeal.” Laster, 275

S.W.3d at 521.

Appellant was accused of intentionally or knowingly selling Serben less

than the represented quantity of a property or service. See Tex. Penal Code

Ann. § 32.42(b)(2) (West 2011). A person acts intentionally “when it is his

conscious objective or desire to engage in the conduct or cause the result.” Id.

§ 6.03(a) (West 2011). A person acts knowingly “when he is aware of the nature

of his conduct” or “when he is aware that his conduct is reasonably certain to

cause the result.” Id. § 6.03(b).

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 Between June and September 2007, Serben received and paid four

invoices from Appellant totaling $74,555.50. Among the itemized items,

Appellant charged Serben for clearing debris and shrubs, procuring permits, and

purchasing and installing electrical materials, materials for “a/c unit, flex

duct/accessories,” copper lines, solar tubes for skylights, cabinets, insulation,

sheetrock, and a house fan. Serben testified that Appellant cleared some but not

all of the debris and shrubs, did not install any cabinets, and did not perform any

electrical work or work on the HVAC. Serben testified that Appellant did not

install any duct work, vents, insulation, sheetrock, or a house fan. Serben did not

recall seeing any electrical materials or copper wiring on the property, and she

only saw one solar tube. Serben testified that Appellant’s permit from the Town

of Flower Mound cost $300, that she was charged $800 for permits, and that she

did not know of or see any other permits.

Despite assurances from Appellant on October 8, 2007 that he would

complete the installation of the HVAC system, plumbing, sheetrock, and

carpentry, Appellant took no steps to complete any of those services. Appellant

sent Serben more assurances on November 24, 2007, but still did not do any

more work on the house, and Appellant did not contact Serben again.

The evidence was that Appellant failed to deliver all of the construction

services that he agreed to provide and for which he invoiced Serben. As the San

Antonio court of appeals has explained,

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 [S]ection 32.42(b)(2) does not focus on a statement made in
advance of the sale. Instead, section 32.42(b)(2) criminalizes
“selling” less than the “represented” quantity. The term “sell” is
defined in the statute as including “offer for sale, advertise for sale,
expose for sale, keep for the purpose of sale, deliver for or after
sale, solicit and offer to buy, and every disposition for value.” Thus,
the definition of sale encompasses the delivery stage of the sale in
addition to the offer stage of the sale. Moreover, a determination of
whether the quantity sold was less than the quantity “represented”
could only be made at the time of delivery. The statute’s use of the
past tense “represented” further bolsters its intent to criminalize a
defendant’s failure to deliver the quantity stated in the contract or
otherwise promised.

Torres v. State, No. 04-12-00752-CR, 2013 WL 5942605, at *2 (Tex. App.—San

Antonio Nov. 6, 2013, no pet.) (mem. op.). The evidence is therefore sufficient to

support the jury’s finding that Appellant intentionally or knowingly sold Serben

less than the represented quantity of his construction services. We overrule

Appellant’s second issue.

Conclusion

Having overruled Appellant’s issues, we affirm the trial court’s judgment.

/s/ Lee Gabriel
LEE GABRIEL
JUSTICE

PANEL: MCCOY, MEIER, AND GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 17, 2014

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