Opinion issued May 19, 2011.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-08-00338-CR
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Curtis Wayne Holcomb, Appellant
V.
State of Texas, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Case No. 1141353
MEMORANDUM OPINION
A jury convicted appellant, Curtis Wayne Holcomb, of third-degree felony theft[1] and assessed his punishment at six years in prison. Appellant challenges both the legal and factual sufficiency of the evidence supporting the jury’s verdict.[2] We affirm.
Background
Appelant’s indictment for theft by deception, or coercion, of items valued between $100,000 and $200,000 named a total of eight complainants (Mark Theodoridis, Janet Lester, Marvin Bledsoe, Barbara Heins, Walter Davis, Sandra Mathieu, Jose Hinojosa, and Josefina Hinojosa) and the theft was alleged as one scheme and continuing course of conduct. The State subsequently abandoned the charges pertaining to the Hinojosas and Mathieu as complainants and charged appellant with theft between $20,000 and $100,000 as to the five remaining complainants. Appellant was tried together with his wife and co-defendant, Donna Holcomb.
The complainants testified that they contracted with either “All Universal Services Company” or “Texas House Movers”—two businesses owned and operated by appellant and his wife—for the purchase of older homes to be moved to their property. Each made a series of payments to the Holcombs as required under their contracts. In some instances the checks were made payable to appellant or his wife, individually. After partially performing the contracts—generally, placing the house on beams and removing the roof of the house—the Holcombs would regularly fail to return the buyer’s calls and eventually cease work on the project. The complainants testified that after removing the roof, the Holcombs failed to properly shield the interior and all suffered damage from the elements. One complainant never received a copy of the signed contract and another testified that she never signed because appellant’s wife told her that her signature was not necessary. Ultimately, not only were none of the houses delivered, but the Holcombs never obtained the permits required to move several of the houses and, in fact, did not even own some of the houses they contracted to sell.
While Donna Holcomb handled most of the negotiations and contractual matters and appellant’s task was the actual moving of the homes, the complainants testified that appellant, too, worked with them and played a role in the sales side of the couple’s business (i.e., showing homes to prospective buyers, negotiating sales, executing sales contracts, collecting payments). Specifically, Walter Davis testified that he entered into a contract with the Holcombs for the sale and delivery of a house in August 2006. After making the first two payments due under the contract—both of which were made payable to appellant, individually—Davis did not hear from the Holcombs again until he hired another company to move the house. When the other company began working on the project in January 2007, appellant arrived at the site and told the workers to stop because the house belonged to him, not Davis. The following message was subsequently painted on the side of the house: “Notice, this house is the property of Curtis Holcomb. Do not attempt to move.”
In addition to the testimony and evidence presented regarding appellant’s dealings with the five complainants, evidence of five other extraneous offenses was introduced. Specifically, five other buyers who, like the complainants, contracted with the Holcombs, made a series of payments and were met with only partial performance, no communication, and no houses.
Although appellant did not testify during the guilt-innocence phase of the trial, his wife testified that their failure to deliver each of the homes was due to either problems with the weather, mechanical problems, family illness, personal problems, or was the fault of the complainant.
Discussion
In his first two points, appellant contends that the evidence was legally and factually insufficient to prove the requisite intent to commit the offense of aggregated theft, either as a principal or a party. Specifically, he contends the evidence was insufficient to prove that he (1) unlawfully appropriated property, (2) acted with the requisite intent of “deception” or “coercion,” or (3) acted with any criminal intent whatsoever.
a) Standard of Review
This court reviews sufficiency-of-the-evidence challenges applying the same standard of review, regardless of whether an appellant raises a legal or a factual sufficiency challenge. See Ervin v. State, 331 S.W.3d 49, 52–56 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (construing majority holding of Brooks v. State, 323 S.W.3d 893, 912, 926 (Tex. Crim. App. 2010) (plurality and concurring ops.)). Under the standard enunciated in Jackson v. Virginia, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational fact finder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. See 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Brooks, 323 S.W.3d at 899 (plurality op.); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We can hold evidence to be insufficient under the Jackson standard in two circumstances: (1) the record contains no evidence, or merely a “modicum” of evidence, probative of an element of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see also Laster, 275 S.W.3d at 518. An appellate court presumes that the fact finder resolved any conflicts in the evidence in favor of the verdict and defers to that resolution, provided that the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.
b) Theft of Property
A person commits theft “if he unlawfully appropriates property with intent to deprive the owner of property.” Tex. Penal Code Ann. § 31.03(a) (West Supp. 2010). Appropriation of property is unlawful if it “is without the owner’s effective consent.” Tex. Penal Code Ann. § 31.03(b)(1). Consent is not effective if it is induced by deception, which occurs when an actor promises to do something that he or she “does not intend to perform or knows will not be performed” or when he creates or confirms “by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true.” See Tex. Penal Code Ann. § 31.01(1)(A), (E) (West Supp. 2010) (defining “deception”); Tex. Penal Code Ann. § 31.01(3)(A) (stating consent not effective if induced by deception or coercion). Intent may be inferred from the accused’s conduct and surrounding circumstances. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).
Here, the jury charge authorized the jury to convict appellant of the offense of theft of property either as a principal or as a party to the offense. See Tex. Penal Code Ann. §7.02(a)(2) (West 2003). Under the law of the parties, a person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Id.
c) Analysis
Appellant contends that the State failed to prove that he had no intention of fulfilling the contracts at the time he entered into them, and therefore, the State failed to prove that he appropriated property through “deception” or “coercion.” At most, appellant argues, the State merely proved his partial performance and thus what amounted to civil disputes over terms and conditions of the respective contracts.
Citing Phillips v. State, 640 S.W.2d 293, 294 (Tex. Crim. App. 1982) and Baker v. State, 986 S.W.2d 271, 274 (Tex. App.—Texarkana 1998, pet. ref’d), appellant posits that failure to perform a contract is not evidence that a defendant deceived the complainant into paying him money. The cases cited, however, speak to “theft” in the context of the failure to perform a single contract. Here, the evidence of deception is echoed repeatedly and thus substantially more significant than a single contract’s mere failure to perform. The jurors heard testimony that the Holcombs entered into contracts with at least ten different buyers over three and a half years, and time after time, after collecting partial payments, refused to return the buyers calls or complete the jobs. A fact finder may infer from such patterns of conduct that the actor intended the ultimate result—in this case, the failure to deliver the houses as agreed. See Plante v. State, 692 S.W.2d 487, 491–93 (Tex. Crim. App. 1985) (discussing doctrine of chances). Testimony also established that, although he did not sign many of the contracts, appellant was generally present when they were executed; he showed homes to prospective buyers; negotiated the sales contract with one complainant, and promised another delivery by a certain date; collected payments (some payable to appellant personally rather than his business); and performed or supervised most of the work on the houses.
The jury was free to resolve the conflicting versions of the testimony it heard from the complainants and appellant’s wife and to make its own determinations as to credibility. Viewed in the light most favorable to the verdict, the evidence that appellant did not intend to fulfill the contracts when he entered them was sufficient. Accordingly, we overrule both of appellant’s issues.
Having determined that the evidence was sufficient to demonstrate that appellant acted with the requisite intent to comment the offense of aggregated theft as a principal, we need not address whether the evidence was sufficient to convict appellant as a party of the offense.
Conclusion
We affirm the judgment of the trial court.
Jim Sharp
Justice
Panel consists of Justices Jennings, Alcala, and Sharp.
Do not publish. Tex. R. App. P. 47.2(b).
[1] Appellant was convicted of the third-degree felony offense of theft of property with a value of $20,000 or more but less than $100,000. See Tex. Penal Code Ann. § 31.03(a), (b), (e)(5) (West Supp. 2010), § 31.09 (West 2003).
[2] Appellant argues that the trial court erred in denying his motion for new trial because the evidence was insufficient to support jury’s verdict. We apply the same standard of review to a trial court’s denial of a motion for new trial brought on the basis of insufficient evidence as we do to appellate review of challenges to the legal sufficiency of the evidence. McCall v. State, 113 S.W.3d 479, 480 (Tex. App.—Houston [1st Dist.] 2003, no pet.).