Kent, Kevin Lavelle

PD-1340-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 4/17/2015 6:40:26 PM
April 20, 2015 Accepted 4/20/2015 8:17:15 AM
ABEL ACOSTA
No. PD-1340-14 CLERK

IN THE COURT OF CRIMINAL APPEALS

NO. 14-13-00375-CR
In the Court of Appeals for the Fourteenth District of Texas at Houston

No. 1253665
In the 174th District Court of Harris County, Texas

KEVIN L. KENT
Appellant

V.

THE STATE OF TEXAS
Appellee

Appellant’s Brief on Discretionary Review

Filed by James F. Pons
TXSBN 24041707
10900 N.W. Fwy., Ste. 230
Houston, TX 77092
Ph (832) 372 8138
Fax (713)869 8330
Email: jpons_78221@yahoo.com

On behalf of Appellant:
Kevin L. Kent

Oral Argument Permitted
 Table of Contents

Table of Contents
………………………………………………………………………………..i

Index of Authorities
………………………………………………………………………………iii

Statement Regarding Oral Argument
……………………………………………………………………………….v

Statement of Facts
……………………………………………………………………………….1

Summary Argument
……………………………………………………………………………...10

Argument
……………………………………………………………………………...11

I.
The erroneous jury charge in this case failed to instruct the jurors that they
needed to unanimously agree about the elements of §31.09 and used
disjunctive language to list the particular owners allowing for a less than
unanimous verdict
……………………………………………………………………………...11

A. Appellee’s reference to the appellant’s requested instruction at trial is not
helpful.
……………………………………………………………………………...11

B. The request for unanimity on the elements of owner and that owner’s
associated property are consistent with indictment and the language of
§31.03.
……………………………………………………………………………...12

C. Lehman and Murchison do not require a different holding.
……………………………………………………………………………...13

i
II.
The court below held that the gravamen of § 31.09, the owner and their
particular property, not each individual transaction, represents an individual
unit of prosecution demanding unanimity
……………………………………………………………………………...15

A. Appellee argues that the lower court erred by holding that each
transaction demands unanimity.
……………………………………………………………………………...15

B. Appellee fails to point to an identifiable error in lower court’s legislative
intent analysis.
……………………………………………………………………………...16

C. The Court’s prior decisions support the finding that §31.09’s gravamen
includes the owner and their associated property.
……………………………………………………………………………...19

D. The Court’s prior decisions also support finding that the gravamen of the
owner and their associated property are separate units of prosecution
requiring juror unanimity.
……………………………………………………………………………...21

E. The jury in this case delivered a non-unanimous verdict.
……………………………………………………………………………...23

F. Appellee asks the Court to create public policy without legal or factual
support.
……………………………………………………………………………...24

III.
The lower court’s finding of some harm is consistent with this Court’s
finding of egregious harm
……………………………………………………………………………...25

A. Trial counsel for State misstated law from beginning of trial to end of
trial.
……………………………………………………………………………...26

ii
B. The evidence at trial was contested.
……………………………………………………………………………...27

C. Appellee’s reliance on distant boilerplate language should be rejected.
……………………………………………………………………………...29

D. The evidence at trial was of a complicated commercial real-estate
transaction.
……………………………………………………………………………...30

Prayer for Relief
……………………………………………………………………………...33

Certificate of Compliance
……………………………………………………………………………...33

Index of Authorities

1. Case Law

Byrd v. State, 337 S.W.3d 242 (Tex. Crim. App. 2011)
…………………………………………………………………...…12, 20, 24

Francis v. State, 36 S.W.3d 121, 123 (Tex. Crim. App. 2000)(en banc)
………………………………………………….......11, 14, 20, 21, 22, 23, 25

Francis v. State, 53 S.W.3d 685 (Tex. App.—Fort Worth 2001)
……………………………………………………………………………...25

Garza v. State, 344 S.W.3d 409 (Tex. Crim. App. 2011)
…………………………………………………………...7, 16, 20, 22, 23, 24

Johnson v. State, 364 S.W.3d 292, 297 (Tex. Crim. App. 2012)
……………………………………………………………………………...20

Jourdan v. State, 428 S.W.3d 86, 96 (Tex. Crim. App. 2014)
…………………………………………………………………………17, 18

iii
Kent v. State, 447 S.W.3d 408, 411 (Tex. App.—Houston [14th Dist.] 2014,
pet. granted)
…………………………………………………………………………….......
2, 4, 5, 11, 12, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 25, 26, 27, 28, 29, 30

Lehman v. State, 792 S.W.2d 82, 83-84(Tex. Crim. App. 1990)(en banc)
……………………………………………………………………...13, 14,15

Lehman v. State, 727 S.W.2d 656, 657-59(Tex. App.—Houston [1st Dist.]
1987, pet. grant’d)
……………………………………………………………………...............13

Murchison v. State, 93 S.W.3d 239, 257-60 (Tex. App.—Houston [14th
Dist.]1987, pet. ref’d)
………………………………………………………………………….14, 15

Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005)
…………………………………………………14, 21, 22, 23, 26, 27, 29, 30

Richardson v. United States, 526 U.S. 813 (1999)
…………………………………………………………………………18, 28

Schad v. Arizona, 501 U.S. 624 (1991)
……………………………………………………………………………….7

State v. Weaver, 982 S.W.2d 892, 894 (Tex. Crim. App. 1998)
…………………………………………………………………………16, 17

Stone v State, 703 S.W.2d 652, 654 (Tex. Crim. App. 1986)
……………………………………………………………………...............11

Stuhler v. State, 218 S.W. 3d 706, 717 (Tex. Crim. App. 2007)
………………………………………………………………….21, 22, 23, 26

2. Statutory authority

TEX. PENAL CODE § 31.03 (West 2010)
……………………………………………………………………………...12

iv
TEX. PENAL CODE § 31.09 (West 2010)
………………………………………………………………14, 15, 16, 17,
23

Statement Regarding Oral Argument

This Court has permitted oral argument.

v
 Statement of Facts

Appellant was a mortgage broker. R.R. V. 8 pgs. 9-12. Appellant was the

registered owner and operator of Orlando Mortgage and Distinguished Properties.

R.R. V. 5 pg. 32-34, R.R. V. 7 pg. 126. Prior to 2003, Maralyn Cochran and the

Appellant conducted commercial real-estate transactions involving homes for the

intellectually disabled. R.R. V. 5 pgs. 27-28, 143, R.R. V. 8 pgs. 17-18. Trial

counsel for the State referred to these types of facilities as intermediate care

facilities for the mentally retarded (ICF/MR). R.R. V. 5 pg. 15. In 2003, Ms.

Cochran, who previously owned an ICF/MR, was acting as a commercial real-

estate broker. R.R. V. 5 pgs. 17-18, 131.

The complainants, Larry and JoAnn Aniol own an ICF/MR named River

Gardens in New Braunfles Texas. R.R. V. 5 pgs. 15, 35. Only JoAnn Aniol

testified at trial. Larry Aniol did not testify at trial.

The Aniols attempted to sell River Gardens in 2002. R.R. V. 5 pg. 16. In

the spring of 2002, Ms. Cochran offered to help the Aniols obtain financing for the

sale. R.R. V. 5 pgs. 17-18, 131. To arrange funding for the $19.5 million dollar

commercial real-estate transaction Ms. Cochran introduced the Aniols to the

appellant. R.R. V. 5 pg. 19.

Barbara Allen and her daughter Tamara Allen own and operate Casa Linda,

an ICF/MR for girls located in Brownsville Texas. R.R. V. 6 pgs. 35-37. Barbara

1
Allen testified that she is the administrator of casa Linda. R.R. V. 6 pg. 35.

Tamara Allen did not testify at trial. In 2003, the Allens intended on expanding

their business by acquiring River Gardens. R.R. V. 6 pg. 36. Ms. Cochran

introduced the Aniols to the Allens as prospective buyers for River Gardens. R.R.

V. 6 pg. 37-39, 45, 48.

Ultimately, Ms. Cochran was paid a $150,000 brokerage fee for the

introduction of the above stated parties. R.R. V. 5 pg. 28. The evidence at trial

showed that after this introduction the Aniols and the Allens, on separate occasions

for different reasons, began making deposits with the appellant in order to further

this commercial real-estate transaction. See State Ex. 64, State Ex. 65.

Specifically, JoAnn Aniol testified that in May of 2003 she transferred

$200,000 to the Allens intending to help the Allens “buy down points” and obtain a

better interest rate on the loan for the purchase. R.R. V. 5 pgs. 43-44, R.R. V. 6

pgs. 55-56. Barbra Allen and the Aniols signed a “short term loan” agreement to

memorialize this transfer. Kent v. State, 447 S.W.3d 408, 411 (Tex. App.—

Houston [14th Dist.] 2014, pet. granted). Ms. Allen subsequently transferred the

$200,000 to an Orlando Mortgage account. R.R. V. 5 pgs. 24-25, 46, 48-49, 86-

87, R.R. V. 6 pg. 57. She claimed the appellant influenced her to do so claiming

the amount would “buy down points” and lower the interest rate on the purchase.

R.R. V. 6 pgs. 55-57.

2
 In August of 2003 the Aniols deposited $369,528 with Lawyers Title in

order to show their good faith in the transaction and encourage Texas One Credit

Union to make the loan on the transaction. R.R. V. 5 pgs. 21, 50, 133-36.

Ms. Aniol testified she made these transfers relying on phone calls from the

appellant and faxes from Orlando Mortgage. R.R. V. 5 pg. 42. She testified that

the appellant represented to her that his Father was on the board of the Texas One

Credit Union. Id. She further explained that the appellant represented that his

father could influence the approval of the loan. Id.

A witness for the credit union previously known as Texas One Credit

testified that Texas One did not have sufficient funds to finance the large loans

described by the witnesses. R.R. V. 6 pgs. 27-28. The appellant’s father testified

he had no knowledge of any real-estate transaction with his son and that he was a

floor repair-man/sales-man. R.R. V. 6 pgs. 11-12.

Ms. Aniol testified that she relied on the appellant’s representations that her

deposits were going into an escrow account. R.R. V. 5 pg. 46. She also testified

that the Orlando Mortgage website gave her a sense of security in the transaction.

R.R. V. 5 pgs. 24-25.

Ms. Aniol became frustrated with the back and forth of a commercial real-

estate deal and consulted with her brother, which she described as an investor.

R.R. V. 5 pgs. 49-51, 63-64, 92-93. She subsequently demanded the appellant

3
return her deposits. Id. In September of 2003, the appellant retuned the $369,528

deposit. R.R. V. 5 pgs. 51-52, 133.

Ms. Aniol testified that in October of 2003 the appellant approached her

attempting to revitalize the River Gardens sale. R.R. V. 5 pgs. 52, 66, 73-74, State

Ex. 48. Because they felt everything was already in place and there was a

prospective buyer in the Allens, the Aniols re-deposited the amounts with the

Appellant in a Washington Mutual business account. R.R. V. 5 pgs. 52-54, 56, 66,

135-36. The Aniols re-deposited the funds despite the fact that the lending

institution was unknown and blacked out in the loan commitment paperwork. R.R.

V. 5 pgs. 58-60, 66-67, 95, 136-37.

Ms. Aniol testified that the appellant assured her of the validity of the

transaction by faxing her documents purporting to be legitimate loan commitments

to the Allens. R.R. V. 5 pgs. 77, 81-84, State Ex. 46, State Ex. 48. Ms. Aniol also

testified that the appellant provided her assurances that the funds continued to be

held in an escrow account. R.R. V. 5 pgs. 77, 81-84, State Ex. 46, State Ex. 48.

Ms. Aniol admitted to the work done by the appellant to further the River

Gardens sale. Kent, 447 S.W.3d at 413. She acknowledged “constant phone calls”

with the appellant during the pendency of the River Gardens transaction. Id. Ms.

Aniol testified to having daily conversations and daily fax communication with the

appellant during this time. Id. She admitted to sending the appellant thousands of

4
documents and receiving 900 faxes from the appellant. Id. While acknowledging

these types of documents were typical in underwriting she admitted that she was

not sure of “how appellant was going to be paid.” Id. Ms. Aniol also testified that

she “had lawyers reviewing the transaction beginning in the fall of 2004.” Id.

From February 2004 to November 2005 the Aniols made more deposits to

“buy points down” or obtain a favorable position with the credit union. R.R. V. 5

pgs. 80, 88. Other deposits for debt service or appraisals were also made in order

to close the River Gardens deal. R.R. V. 5 pg. 116. In particular, in December of

2004 the Aniols loaned Barbra Allen another $150,000 to deposit with the

appellant with the understanding the money was to be deposited in escrow to

influence the ultimate sale. Kent, 447 S.W.3d at 412.

Ultimately, the River Gardens deal did not close. R.R. V. 5 pg. 122. In

November 2005 the Aniols withdrew from the deal and sent the appellant a

demand letter for their total deposits of $775,000. Id., R.R. V. 7 pg. 136. In

December of 2005 Jo Ann Anilos and Barbra Alllen signed a general release

absolving the appellant from civil liability in regards to the River Gardens sale.

Defendant’s Ex. 1 and 2, R.R. V. 19 evidence volume pages 84, 85, Kent, 447

S.W.3d at 423-24.

After the Aniols withdrew from the River Gardens deal the Allens continued

to work with the appellant. R.R. V. 6 pgs. 80- 81. Ms. Allen testified she believed

5
the Aniol’s deposits were returned by the appellant and her previous deposits were

still secured. R.R. V. 6 pgs. 82-83. After the River Gardens deal fell through the

Allens changed their focus to the acquisition of hotel properties. R.R. V. 6 pg. 81.

From 2005 to 2008 the Allens continued to make deposits with the appellant

for commercial real-estate investments separate from the River Gardens deal. R.R.

V. 6 pgs. 82-84. Ms. Allen testified that the Appellant put her in contact with less

than ten prospective hotel sellers. R.R. V. 6 pgs. 91-92. Ms. Allen testified that

she eventually deposited a total of $762,000 with the appellant for the various real-

estate deals. R.R. V. 6 pg. 84, R.R. V. 7 pg. 136.

Ms. Allen testified she never meet the appellant and only communicated

with him by telephone and fax. R.R. V. 6 pg. 40, 46, 47-48. She testified she

relied on the website information and the appellant’s statement that his father held

an influential position with a financial institution. R.R. V. 6 pgs. 41, 48-49, 109.

Evidence showed that from 2003 to 2005 cash withdraws were made directly

from the Orlando Mortgage Washington Mutual account. R.R. V. 6 pgs. 41, 48-49,

109, R.R. V. 7 pgs. 102-03, 134-36, State Ex. 3A, State Ex. 3B, State Ex. 3C.

Evidence also showed that from 2003 to 2005 funds from the Orlando

Mortgage Washington Mutual Account were spent on the purchase of personal

items and services. R.R. V. 6 pgs. 41, 48-49, 109, R.R. V. 7 pgs. 126-34.

6
 The indictment against the appellant tracked the language of the general

theft statute and was a single paragraph that combined four separate complainants

conjunctively with the word “and.” See R.R. V.4 pg. 109.

During the jury charge conference trial counsel for the appellant objected to

the disjunctive nature of the first application paragraph in the jury charge. R.R. V.

9 pgs. 49-52. Specifically, trial counsel explained that the jury charge violated the

appellant’s right to Due Process under the United States Constitution and the Texas

Constitution because the application paragraphs did not require the jury to “agree

unanimously that the state proved beyond a reasonable doubt each element of the

offense.” R.R. V. 9 pg. 49. Trial counsel for the appellant also provided case law

supporting the objection. Id. Garza v. State, 344 S.W.3d 409, 414 (Tex. Crim.

App. 2011), Schad v. Arizona, 501 U.S. 624 (1991).

Trial counsel for the appellant then specifically requested that the charge

delineate each separate alleged criminal episode in the disjunctive in order to

obtain an unanimous verdict on each act. R.R. V. 9 pg. 51. Trial counsel proposed

that the application paragraph list out all the alleged fraudulent deposits and

referred to State’s Exhibit 64 and 65 as guidance. Id.

Trial counsel for the State countered that delineating the separate and

distinct thefts was “improper” and not “required by the code.” R.R. V. 9 pg. 52.

Counsel for the State at trial then stated that the State could prove its case if the

7
Jury believed that $200,000 or more was stolen from “one of these complainants or

conjunctively one or more of the complainants during this time period.” Id. This

statement was consistent with the State’s instructions at jury selection.

Trial counsel for State instructed the jury during jury selection that each

owner and their particular property were not elemental. R.R. V. 4 pgs. 13-14.

Trial counsel for the State explained that the disjunctive pleading was more like a

decision on the manner and means of the offense not requiring unanimity. “I

don’t have to prove that each one of these victims individually was stolen from. …

let’s say juror 3 believes $200,000 was stolen form Barbara Allen . . . and juror 4

believes over $200,000 was stolen from Joann and Larry Aniol. And they don’t

have to agree on that. They have to agree the total amount was over $200,000

stolen form one of the complainants or a combination.” Id. This instruction

allowed six jurors to find the appellant appropriated form the Aniols and six to find

he appropriated form the Allens resulting in a less than unanimous verdict on all

the elements of the offense.

The jury in this case received a disjunctive application paragraph allowing

them to convict the Appellant of theft if they found from the evidence that the

Appellant, “. . .did . . .appropriate . . .money . . . owned by Barbara Allen or

Tamara Allen or Larry Aniol or Joann Aniol with the intent to deprive Barbara

8
Allen or Tamara Allen or Larry Aniol or JoAnn Aniol ”. R.R. V. 9 pg. 52; C.R.

V. 1 pg. 606-607.

In closing argument, trial counsel for the State relied on this disjunctive

paragraph and explained to the jury that as long they found that “one complainant

was out over $ 200,000” they could render a guilty verdict. R.R. V. 9 pgs. 60-61.

Further, trial counsel for the State argued that if the jurors agreed with the defense

and found that the “general release” signed by the parties absolved the appellant of

culpability in reference to the River Gardens deal, they could rely on the fact that

the Allen’s “hotel” transactions were not included in that release. Kent, 447

S.W.3d 423-24.

Subsequently a jury found the appellant guilty of first degree aggregate theft

of over $200,000. (C.R. V. 1 pg. 612). The Honorable Judge Guerrero sentenced

appellant to 60 years Texas Department of Corrections. (C.R. V. 1 pg. 615). The

Honorable Judge Guerrero signed the appellant’s judgment on April 24, 2013.

(C.R. V. 1 pg. 615). The judgment included an order of restitution to the

complaints in the amount of $975,000. Id. Notice of Appeal was timely filed on

April 24, 2013. (C.R. V. 1 pgs. 621-22).

The court of appeals for fourteenth district found the application paragraph

was erroneous and caused the appellant harm. Consequently the court reversed the

judgment and remanded to the district court for retrial.

9
 Summary of Argument

Each theft represents a distinct unit of prosecution under §31.09. This unit

of prosecution is comprised of the gravamen of the owner and their associated

property. Although the amounts can be aggregated among the various

complainants to determine the degree of offense, there still must be a unanimous

verdict as to each separate e unit of prosecution. Unanimity is required when the

elements are separate and distinct acts constituting the commission of the offense.

The error in the application paragraph in this matter was two-fold. First, the

paragraph failed to instruct the jury that a unanimous decision on the owner and

their property was mandated. Combined with this omission, the application

paragraph in this case listed the complaints in the disjunctive allowing for the jury

to return a less than unanimous verdict on substantive elements.

Some harm is present in this record because six jurors could have found that

the Appellant appropriated money from one complainant and six could have found

that he appropriated from another; resulting in a less than unanimous verdict.

Further, the record exhibits that trial counsel for the State empowered the jury to

deliver a non-unanimous verdict with improper instructions from the beginning of

10
trial to the end. The record shows that the evidence was contested and that

boilerplate language only exacerbated the harm.

Argument

I.
The erroneous jury charge in this case failed to instruct the jurors that they needed
to unanimously agree about the elements of §31.09 and used disjunctive language
to list the particular owners allowing for a less than unanimous verdict

A. Appellee’s reference to the appellant’s requested instruction at trial is not

helpful.

Error was preserved in this matter. Kent, 447 S.W.3d at 421-22. Appellee

references trial counsel’s requested instruction. Appellee’s Brief on Discretionary

Review, pgs. 2, 15, 18, 19, 23. Appellee describes trial counsel for the appellant’s

request as contrary to Texas law. Id. 15-16. However, this request is not

dispositive to the issue presented for review. Trial counsel for the appellant’s

request is relevant to error preservation, which has already been decided. Kent,

447 S.W.3d 421-22. The Court of Criminal Appeals in Francis explained that

although the appellant’s request created an erroneous charge, the erroneous request

was not the dispositive issue. Francis v. State, 36 S.W.3d 121, 123 (Tex. Crim.

App. 2000)(en banc). The court reflected on the decision in Stone v State, 703

S.W.2d 652, 654 (Tex. Crim. App. 1986), and reiterated that the jury charge

objection need only be “sufficient to call the trial court’s attention to the omission
11
in the court’s charge.” Francis, 36 S.W.3d at 123. The Court further found that the

objection and request by counsel at trial in Francis “apprised [the Court of]

appellant’s objection to omissions in the charge.” Id.

The requested application paragraph is relevant to error preservation and is

not relevant §31.09’s requirement of juror unanimity on the element of ownership

and the particular property associated with that owner. Byrd v. State, 337 S.W.3d

242, 250-51 (Tex. Crim. App. 2011), Kent, 447 S.W.3d at 418. Instead, the

application paragraph error addressed by the court below was: (1) the absence of

language informing the jury of the need to be unanimous combined with (2) the

disjunctive list of the complainants that allowed for a less than unanimous verdict.

Kent, 447 S.W.3d at 421.

B. The request for unanimity on the elements of owner and that owner’s
associated property are consistent with indictment and the language of §31.03.

Appellee also claims that trial counsel for the appellant’s request varied form

the indictment. Appellee’s Brief on Discretionary Review, pgs. 2, 14, 16-17. As

pointed out by the court below, the indictment actually tracked the language of

§31.03, the underlying theft statute. Kent, 447 S.W.3d at 417. The language of

§31.03 was also present in the submitted instruction. A natural consequence of this

language in the indictment was that the requested instruction include the gravamen

of each offense. See Byrd, 337 S.W. 3d at 250-51(gravamen of §31.03 is owner

and that owner’s particular property).
12
 More importantly, trial counsel for the appellant requested the inclusion of

conjunctive language in the charge, as opposed to the disjunctive language that was

used. The issue presented below was the erroneous combination of an absence of a

unanimity instruction on elements and a disjunctive list of complainants allowing

for a less than unanimous verdict. Kent, 447 S.W.3d at 421.

C. Lehman and Murchison do not require a different holding.

Like this case, Lehman dealt with specific language in the charge. Lehman

v. State, 792 S.W.2d 82, 83-84(Tex. Crim. App. 1990)(en banc). However, the

issue under review in Lehman is distinguishable from the issue at bar. The

appellant in Lehman was a convicted police officer accused of six different thefts

from six different individuals he investigated. Lehman v. State, 727 S.W.2d 656,

657-59(Tex. App.—Houston [1st Dist.] 1987, pet. grant’d). The objection at trial

in Lehman focused on an instruction that allowed the jury to convict if it believed

beyond a reasonable doubt that appellant committed “. . . some, but not all . . .” of

the alleged thefts. Lehman, 792 S.W.2d at 83. The charge allowed conviction “. . .

as long as the jury believed beyond a reasonable doubt that [he] committed ‘one or

more’ of the thefts.” Id. Trial counsel in Lehman argued that the jury should be

required to find that all six of the alleged thefts were proven beyond a reasonable

doubt before it could convict. Lehman, 727 S.W. 2d at 658.

13
 Unlike the “some, but not all” paragraph under attack in Lehman, the

application paragraph in the case at bar is disjunctive. This disjunctive nature

allows for a non-unanimous split verdict. Unlike trial counsel in Lehman, trial

counsel for the appellant argued that the jury was required to be unanimous as to at

least one of the complainants and related acts of theft. R.R. V. 9 pg. 51.

Appellee’s reliance on Murchison v. State, 93 S.W.3d 239, 257-60 (Tex.

App.—Houston [14th Dist.]1987, pet. ref’d) is also misplaced. Murchison dealt

with a prosecution under the Texas Securities Act. Id. Although the Securities

Act, like §31.09, allows aggregation for specific purposes, the relevant issue in

Murchison did not focus on the similarities of the Securities Act and § 31.09.

Instead, the appellants in Murchison argued that the jury should have been required

to unanimously agree that the appellants intentionally failed to disclose at least one

of the five Material Facts listed in the jury charge. Id.

The contrast between the instruction in Murchison and the instruction in the

case at bar exhibits the difference between mere manner and means and separate

distinct acts requiring juror unanimity. The court in Murchison held that the

failure to disclose one of the five Material Facts were alternative manner and

means of proving the same offense. Id. at 258-59. The case at bar presents two

separate distinct complainants involved in at least two separate and distinct

transactions. Because theses separate acts and complainants are considered

14
elemental, unanimity as to one of the complainants and or acts is constitutionally

mandated. See, Francis, 36 S.W.3d at 121, Ngo v. State, 175 S.W.3d 738, 744

(Tex. Crim. App. 2005).

The court below found that “Murchison’s suggestion that Lehman addressed

the issue of jury unanimity was dictum . . .” Kent, 447 S.W.3d at 421. Lehman

narrowly addressed whether the State was required to prove all of the underlying

thefts alleged in the indictment. Id. at 420. “[…]Lehman did not address whether

jurors would have to unanimously agree on the . . .” particular owner and their

associated property. Id. Further, as pointed out by the court below the State did

not allege any particular manner or means in this matter. The Murchsion opinion

may have been helpful if for example the appellant argued that the jury had to

unanimously agree that the appellant appropriated money through deception or

creating a false impression. Id. However, this was not the objection reviewed

below. Id.

II.
The court below held that the gravamen of § 31.09, the owner and their particular
property, not each individual transaction, represents an individual unit of
prosecution demanding unanimity

A. Appellee argues that the lower court erred by holding that each transaction
demands unanimity.

15
 Appellee focuses attention on the lower court’s holding that each criminal

transaction requires unanimity. Appellee’s Brief on Discretionary Review, pgs.

14, 16, 18. This was not the holding below.

Instead, the court below found that §31.09 subsumed the gravamen of its

underlying statute, §31.03, and consequently assumed the necessity of juror

unanimity as to each owner and their associated property. After an analysis of

§31.09’s legislative intent the lower court found these two objects created an

individual unit of prosecution under §31.03, and in turn §31.09, demanding

unanimity as to each.

B. Appellee fails to point to an identifiable error in lower court’s legislative intent
analysis.

“The State does not contend that the Legislature intended Section 31.09 to

do away with the practice of requiring unanimity for the two gravamina of theft.”

Kent, 447 S.W.3d at 418. The appellee does not apply the grammar analysis used

for legislative intent questions. Id. at 414-15, 416-17. Instead, appellee focuses on

prior cases that allow for aggregation for the purposes of “ . . . of severance,

jurisdiction, punishment and limitations … [and] venue.” State v. Weaver, 982

S.W.2d 892, 894 (Tex. Crim. App. 1998). Appellee extends this line of cases

without applying the correct legal test. Appellees Brief on Discretionary Review at

pgs. 20, 25.

16
 The Court in Weaver and later in Garza did not expand this list to include

the elements of each distinct owner and their property. Weaver, 982 S.W.2d at

894, Garza, 344 S.W.3d at 414. In fact, the entirety of both opinions establishes

the elemental nature of each separate act and complainant by stating that each

individual theft is elemental. Weaver, 982 S.W.2d at 893, Garza, S.W.3d at 414.

When establishing the elements of a statute the legal test for legislative

intent is the common grammar test. Kent, 447 S.W.3d at 414-15. Section 31.09’s

adverbial phrase, “in violation of this chapter”, creates a distinct unit of

prosecution demanding juror unanimity. Id. at 417.

Appellee discredits this analysis by pointing out that the exception to the

general rule of not making adverbial phrases elemental is applied. Appellees Brief

on Discretionary Review at pg. 20, Kent, 447 S.W.3d at 417. However, like the

Court in Jourdan v. State, 428 S.W.3d 86, 96 (Tex. Crim. App. 2014), the court

below applied this exception because §31.09’s odd linguistic arrangement made

the adverbial phrase “in violation of this chapter” elemental.

In fact, the court of appeals identified that the construction of Texas Penal

Code §31.09 presented an uncommon situation. Kent, 447 S.W.3d at 416.

However, after a thorough application of the eight grade grammar test to the plain

text of the statute, the court reasoned that the exception to the rule should be

applied and an adverbial phrase in this instance should be interpreted as elemental

17
in nature. Id. at 416. A review of the lower court’s opinion shows that a

reasonable product of the statute’s odd construction in this instance is the

application of an exception to the rule of statutory interpretation. Id., see also

Jourdan, 428 S.W.3d at 96.

The appellee’s claim that unanimity as to each particular transaction is

required by the lower court’s opinion disregards the opinion. Appellee’s Brief on

Discretionary Review, pgs. 14, 16, 18. The court of appeals does not state that

unanimity is required as to each transaction. Instead, the court explains that

because §31.09 requires the court to look at other sections of Chapter 31, it is

likely that the legislature intended to include the requirement of unanimity for the

two gravamina of simple theft: the property and the owner. Kent, 447 S.W.3d at

417. The appellee does not dispute this specific holding.

Further, the lower court’s reliance on Richardson v. United States, 526 U.S.

813, 817 (1999) is expected given that Richardson is on-point. The Supreme Court

in Richardson reviewed a similar statute and applied similar legal principles. Kent,

447 S.W.3d at 418-19. The appellee’s brief claims Richardson is distinguishable

because the statute reviewed by the Supreme Court aggregated a “series of

violations” as opposed to §31.09’s singular “in violation” language. Appellee’s

Brief on Discretionary Review, pgs. 20-21.

18
 Not only does this argument disregard Richardson being on-point, but it also

disregards another important aspect of the Richardson analysis. The lower court

relied on Richardson because like §31.09, the statute in Richardson was a “pseudo-

enhancement statute” allowing the aggregation of amounts to determine the grade

of the offense. Kent, 447 S.W.3d at 418. Following Richardson, the lower court

reasonably concluded that not requiring unanimity as to the underlying thefts

owner and particular property “. . . would impose punishment on a defendant for

the underlying thefts without a unanimous jury having found beyond a reasonable

doubt that the defendant committed those thefts.” Id. The appellee’s brief on

discretionary review does not dispute this conclusion.

The lower court also supported this legislative intent finding by asserting

that the legislature has the ability to explicitly except certain actions from the

unanimity requirement. Kent, 447 S.W.3d at 419. Although the appellee attempts

to argue that one should not infer that the 63rd Legislature possessed the same

exception making ability of the 80th or 81st Legislature, this argument misses the

legal import of the lower court’s analysis. Appellee’s Brief on Discretionary

Review, pgs. 21-22. The point is that unlike statutes that explicitly except manner

and means from the unanimity requirement, §31.09 does not contain a similar

direction. Kent, 447 S.W.3d at 419.

C. The Court’s prior decisions support the finding that §31.09’s gravamen
includes the owner and their associated property.
19
 This Court answered the Appellee’s grounds for review in an analogous

context. Appellee’s Brief on Discretionary Review, pgs. 4, 23. In Byrd, 337

S.W.3d at 250-51, the Court explained that the two prong gravamen of theft is (1)

the owner and (2) the property appropriated. The Court used this analysis to find

that the State’s evidence in Byrd was insufficient to prove that the defendant

appropriated property from the named complainant. Id. at 257. The Court, citing

Byrd, reiterated these two elements of theft under §31.03, in a variance objection

context, in Johnson v. State, 364 S.W.3d 292, 297 (Tex. Crim. App. 2012). As the

court below noted, a variance analysis is helpful because the conclusion usually

provides a recitation of all the elements of the offense. Kent, 447 S.W.3d at 415 n.

4.

Similarly, in Garza the key issue on appeal was whether the special owner

that testified at trial satisfied the elemental requirement of proof of ownership,

despite the fact that the State’s proffered witness did not work as an agent for the

entity during the entire time frame of the offense. Garza, 344 S.W.3d at 412-14.

The Garza Court referred to the lower court’s conclusion that the witness satisfied

the ownership element, “. . . because the State does not have to prove each

individual theft in an aggregate theft case, it is likewise not required to prove that

the special owner was an employee of the corporation during the time of each

individual theft.” Id. at 413. The Court of Criminal Appeals explicitly rejected
20
this reasoning reiterating the rule that “. . . [e]ach individual theft is an element of

the aggregated theft described by §31.09.” Id. at 414. This statement confirms the

elemental nature of each distinct theft and each distinct complainant and their

associated property. Kent, 447 S.W.3d at 419. The court in Garza approved of the

special owner because there was only a single entity being represented by the

agent. Garza, 344 S.W.3d at 414

D. The Court’s prior decisions also support finding that the gravamen of the owner
and their associated property are separate units of prosecution requiring juror
unanimity.

§31.03 and §31.09’s combination of owner and associated property represent

individual units of prosecution demanding juror unanimity. Francis v. State, 36

S.W.3d at 121, Ngo, 175 S.W.3d at 744, Stuhler v. State, 218 S.W. 3d 706, 717

(Tex. Crim. App. 2007).

In Francis the Court found the application paragraph erroneous because the

jury was not required to agree between two separate and discrete theories of

indecency. Francis, 36 S.W.3d at 124-25. Specifically, the jury was not required

to unanimously agree whether the offense was committed by touching the breast

versus touching the genitals of the victim. Id. at 125. The Court of Criminal

Appeals pointed out that this was problematic because the evidence at trial showed

that the acts occurred on different dates. See id. at 124-25.

21
 The credit card abuse prosecution in Ngo also involved application

paragraph error. Ngo, 175 S.W.3d at 745-46. The Court of Criminal Appeals

found error because the jury was not required to agree among three theories of the

offense that occurred on separate and discrete occasions. Id. at 746. Specifically,

the jury was not required to agree if the appellant was guilty of stealing a credit

card, or receiving a stolen credit card, or presenting the card with the intent to

obtain a benefit fraudulently. Id. at 745.

Stuhler dealt with an injury to child prosecution. Stuhler, 218 S.W. 3d at

708. The application paragraph in that case allowed conviction if the jury found

either that the appellant in that case, “ . . . caused serious bodily injury, . . . caused .

. . serious mental deficiency, or impairment or injury.” Id. at 717. Because the

Stuhler court categorized injury to a child as a result oriented offense it found the

jury had to agree unanimously to all the elements constituting the offense,

including the result. Id. at 718-19. Consequently, it found the disjunctive charge

in that particular case authorized a less than unanimous verdict. Id.

The rationale linking the above cases is that each of the separate and distinct

theories of the commission of offense occurred at “separate and discrete times

from the others.” Stuhler, 218 S.W. 3d at 717. The above stated litany of cases

hold that unanimity is required when a jury needs to make findings on a separate

22
and discrete events that constitute the commission of the offense. Id., Francis, 36

S.W.3d at 125, Ngo, 175 S.W.3d at 746.

E. The jury in this case delivered a non-unanimous verdict.

The lack of instruction as to the necessity of juror unanimity on elements of

owner and their particular property combined with a disjunctive list of the

complainants allowed for a less than unanimous verdict in this matter. Kent, 447

S.W.3d at. This Court should apply the same analysis used in Francis, Ngo , and

Stuhler when reviewing the application paragraph in this case. Like the statutes

reviewed in the litany of cases cited above the aggregate theft statute in this case

contains by implication a separate unit of prosecution creating a substantive

element of the offense. See TEX. PENAL CODE § 31.09; Garza, 344 S.W.3d at 414,

Kent, 447 S.W.3d at 417. Consequently, the aggregate theft statute requires

unanimity as to each separate and discrete owner and their particular property

constituting the commission of an offense. Stuhler, 218 S.W. 3d at 717.

Like the application paragraphs in litany cited above, the disjunctive

application paragraph in this case does not allow the jury to unanimously agree on

separate acts that constitute the commission of the offense. The evidence at trial

showed that the aggregate theft was compromised of separate independent deposits

from at least two different complaints. R.R. V. 9 pg. 51, State Ex. 64, State Ex. 65.

However, the disjunctive nature of the application paragraph at bar allowed for a

23
split verdict; where six jurors could have found that the appellant appropriated

money from the Allens and six could have found that the appellant appropriated

money from Aniols, resulting in a less than unanimous verdict. Francis, 36 S.W.3d

at 125, Ngo, 175 S.W.3d at 748.

As stated above, each separate owner and their property compromising the

aggregate is an element of aggregate theft. Byrd, 337 S.W.3d at 250-51, Garza,

344 S.W.3d at 414, Kent, 447 S.W.3d at 419. Consequently, this Court can follow

that reasoning and find that the similarly disjunctive application paragraph in the

case at bar allowed for a less than unanimous verdict on a substantive element.

F. Appellee asks the Court to create public policy without legal or factual support.

Appellee petitions this court to legislate from bench claiming the lower

court’s opinion would make prosecutions under §31.09 more laborious for the

State. Appellee’s Brief on Discretionary Review, pgs. 18-19, 22. However,

appellee does not support this assertion with legal or factual authority. Appellee

further speculates that the lower court’s opinion will burden the State with the task

of proving numerous, distinct, and various transactions. Id. at 22. However, this is

an inaccurate summation of the opinion below. Instead, the opinion below requires

juror unanimity for the two elements of (1) the owner and (2) the property

appropriated from that owner. Kent, 447 S.W.3d at 419.

24
 Appellee further claims that the lower court’s opinion will allow mischief on

the part of defense counsel, who appellee claims will now purposely burden the

charge conference with numerous requests for the inclusion of every transaction

evidenced at trial. Appellee’s Brief on Discretionary Review, pgs. 18-19.

Appellee claims that application of the lower court’s opinion would allow for

mischievous defense counsel to spin the facts and cause confusion for the jury with

the inclusion of numerous and various transactions in the charge. Id. However,

appellee presents no legal authority or factual record reference to support this

argument. This also is an inaccurate summation of the opinion below. Instead, the

opinion below requires juror unanimity for the two gravamen of (1) the owner and

(2) the property appropriated from that owner. Kent, 447 S.W.3d at 419.

III.
The lower court’s finding of some harm is consistent with this Court’s finding of
egregious harm

Like the prosecutions in Francis, Ngo, and Stuhler, the application paragraph

in this case combined distinct allegations into one disjunctive application

paragraph allowing for a less than unanimous verdict. Harm from jury instruction

error is present when jurors are capable of returning a less than unanimous verdict

on different offenses. Francis v. State, 53 S.W.3d 685 (Tex. App.—Fort Worth

25
2001). This analysis is confirmed by the decisions in Ngo and Stuhler, where

similar disjunctive instruction language resulted in egregious harm. Ngo, 175

S.W.3d at 745-46, Stuhler v. State, 218 S.W.3d 706, 717 (Tex. Crim. App. 2007).

This Court can follow this litany of cases and find some harm resulted from the use

of an analogous application paragraph.

A. Trial counsel for State misstated law from beginning of trial to end of trial.

The absence of juror unanimity is more likely in this matter because, like

trial counsel for State in Ngo, Stuhler, and Francis, trial counsel for the State in this

case improperly instructed the jury during jury selection and closing argument.

Kent, 447 S.W.3d at 422-23. During jury selection trial counsel for the State

instructed the venire panel that each individual complainant and their associated

property were not elemental. R.R. V. 4 pgs. 13-14. Trial counsel for the State

explained that the disjunctive pleading was more like a decision on the manner and

means of the offense that did not require unanimity.

I don’t have to prove that each one of these victims individually was
stolen from. … let’s say juror 3 believes $200,000 was stolen form
Barbara Allen . . . and juror 4 believes over $200,000 was stolen from
Joann and Larry Aniol. And they don’t have to agree on that. They
have to agree the total amount was over $200,000 stolen form one of
the complainants or a combination.

Id. This instruction resembles the erroneous prosecutorial instructions in Francis,

Ngo, and Stuhler, because it allows six jurors to find the appellant appropriated

26
form the Aniols and six to find he appropriated form the Allens resulting in a less

than unanimous verdict on all the substantive elements of the offense.

The harm was exasperated by the improper qualification of Juror Number

One. Venire-person Number Three sat as Juror Number One in this case. C.R.

pgs. 595-600. After being improperly qualified by trial counsel for the State, Juror

Number One admitted that she would render a guilty verdict in a split decision

scenario. R.R. V. 4 pgs. 13-15.

In closing argument trial counsel for the State again inaccurately instructed

the jury that as long they found that “one complainant was out over $ 200,000”

they could render a guilty verdict without reference to the requirement of

unanimity on that fact. R.R. V. 9 pgs. 60-61. Both inaccurate instructions by trial

counsel for the State were never corrected causing the appellant some harm. Kent,

447 S.W.3d at 423, See Ngo, 175 S.W.3d at 751-52(uncorrected erroneous

unanimity argument contributed to egregious harm).

B. The evidence at trial was contested

Appellee contends there was no harm in this matter because the appellant

did not challenge the “verity of the individual transactions” or make a meaningful

argument about the distinctions between the transactions. Appellee’s Brief on

Discretionary Review, pgs. 27-28, Kent, 447 S.W.3d at 423. However, the court

below disagreed. Id. The appellant testified and denied the allegations of theft.

27
Id. at 412-13, 422. Further, there were at least two separate complainants.

Although they shared one transaction, the evidence at trial adduced separate

deposits form each complainant on separate and distinct occasions. R.R. V. 9 pg.

51. More importantly, Barbara Allen testified she was involved in separate real-

estate deals with the appellant after the Aniols withdrew from the River Gardens

deal. R.R. V. 6 pg. 81.

The State relied on this distinction in its closing argument. Acknowledging

Ms. Allen conducted completely separate real-estate deals with the appellant, trial

counsel for the State assured the jury that they could rely on these separate “hotel”

transactions for conviction if they believed the “general release” absolved the

appellant. Further, the lower court held that the evidence against the appellant for

the Aniols and Allens varied. For instance, “. . . the Aniols were more careful

about documenting their agreement with the appellant that any money would be

held in escrow.” Id. The State did not introduce similar evidence pertaining to the

Allens. Id. In fact, the loan documents for the Allens were agreements with the

Aniols for the $200,000 loan to “buy down points”. “Thus, there was conflicting

evidence about who owned this money— the Aniols or the Allens.” Id. “Given

that the State argued for a conviction based on the ‘hotel’ transaction with the

Allens but the escrow documentation was stronger for the Aniols, the risk on non-

unanimity was exacerbated.” Id.

28
 Because the lack of unanimity concerned “underlying discrete offenses that

are component parts of an aggregate offense,” the lower court found some harm.

Id. at 424. As the lower court noted, this elemental nature increases the “likelihood

that treating violations simply as alternative means, by permitting a jury to avoid

discussion of the specific factual details of each violation, will cover up wide

disagreement among the jurors about just what the defendant did, or did not, do.”

Id., quoting Richardson, 526 U.S. at 819. “[T]here is a significant risk that jurors,

unless required to focus upon specific factual detail, will fail to do so, simply

concluding from testimony, say, of bad reputation, that where there is smoke there

must be fire.” Kent, 447 S.W.3d at 424, quoting Richardson, 526 U.S. at 819. As

noted by the court below, trial counsel for the State in this matter introduced

extraneous offense evidence of the appellant’s alleged appropriations from other

alleged victims that occurred after the transactions involving the Aniols and

Allens. Kent, 447 S.W.3d at 424.

C. Appellee’s reliance on distant boilerplate language should be rejected

Appellee claims the presence of the word “unanimous” on page 610 of the

jury charge cures any error and resulting harm in the application paragraph on page

607. Appellee’s Brief on Discretionary Review, pg. 26, C.R. pgs. 604-612. The

court in Ngo identified the same boilerplate language in the section of the jury

charge dealing with the selection of the foreman. Ngo, 175 S.W.3d at 744-45.

29
However, the court found that such distant language did not cure the error of the

disjunctive application paragraph in that case noting that the general language did

not require “ . . . every juror agree[] that the defendant committed the same, single,

specific criminal act.” Id. at 745. Further, in this particular matter the boilerplate

instruction compounded the harm that resulted from the State’s argument that the

“. . . jurors need not unanimously agree about from whom appellant stole over

$200,000.” Kent, 447 S.W.3d at 424.

D. The evidence at trial was of a complicated commercial real-estate transaction

Appellee claims the record contains overwhelming evidence of guilt in this

matter. Appellee’s Brief on Discretionary Review, pg. 27. However the record

reveals that the evidence at trial was of a complicated commercial real-estate

transaction. This transaction was made more difficult because both the buyer and

the seller wanted to employ non-traditional methods to close the deal.

The evidence at trial adduced that both the Anoils and the Allens signed a

settlement agreement waiving their ability to seek civil damages from the appellant

for the related real-estate transactions. R.R. V. 19 Def. Exs. 1 and 2. This raises a

motive for the Aniols and Allens testimony. The settlement agreements show that

both the Aniols and Allens agreed to waive restitution from the appellant civilly.

Despite this binding waiver, they then sought restitution for the failed transactions

30
from the appellant after he was found guilty. R.R. V. 10 pgs. 20-21. This

contradiction exposes a financial motive for the Aniols and Allens testimony.

Also, the Aniols desired a quick and profitable sale because of their

detreating health circumstances. R.R. V. 5 pgs. 17-18, 52-53. The Allens knew

that a traditional bank or financing institution would be reluctant to help them

make such a large purchase because they needed one hundred percent financing.

R.R. V. 6 pg. 45, 48. Despite the fact that the Allens were an inappropriate buyer,

both parties desired to force the deal to completion. This is evidenced by the fact

that the Aniols transferred $200,000 to the Allens so that Allens could “buy down

points” on the deal, or in other words falsely show they were a worthy buyer. R.R.

V. 5 pgs. 24-25, 43-44, 46, 48-49, 86-87, R.R. V. 6 pgs. 55-57. This type of loan

happened again in December of 2004 when the Aniols loaned Barbra Allen another

$150,000 to deposit with the appellant. Kent, 447 S.W.3d at 412.

Mrs. Allen’s testimony also exhibits the questionable real-estate tactics

employed in this case. Mrs. Allen admitted to making the initial $200,000 deposit

with appellant in order to “buy down points.” R.R. V. 6 pgs. 55-57. This was a

misrepresentation of her credit ability because the funds were not her’s but came

from the seller in the transaction. Ms. Allen testified that although she believed the

Aniols’ deposits were returned, when they called her to inquire about the matter

she refused to help them and only referred them to the appellant for answers. R.R.

31
V. 6 pg. 82. Despite testifying she was ultimately unhappy with the work of the

appellant, the evidence showed that the Allens continued to work with the

appellant after the Riverside transaction fell through and after receiving the above

stated inquiry from the Aniols. R.R. V. 6 pgs. 80- 83.

Similarly, although they ultimately complained about the work of the

appellant on the Riverside deal, the Aniols admitted to paying Ms. Cochran

$150,000 thousand dollar brokerage fee for introducing them to the appellant.

R.R. V. 5 pg. 28. The brokerage fee was for a $19.5 million dollar commercial

real-estate transaction. The evidence showed that the Aniols did not dispute this

fee. Id. The payment and acquiescence to this related brokerage fee shows that the

Aniols recognized and accepted the fact that fees for services were part of the

Riverside transaction. The fee also proves that the Aniols thought a large fee was

reasonable for associated services in the transaction.

Ms. Aniol admitted to the work done by the appellant to further the River

Gardens sale. Kent, 447 S.W.3d at 413. She acknowledged “constant phone calls”

with the appellant during the pendency of the River Gardens transaction. Id. Ms.

Aniol testified to having daily conversations and daily fax communication with the

appellant during this time. Id. She admitted to sending the appellant thousands of

documents and receiving 900 faxes from the appellant. Id. While acknowledging

these types of documents were typical in underwriting she admitted that she was

32
not sure of “how appellant was going to be paid.” Id. Ms. Aniol also testified that

she “had lawyers reviewing the transaction beginning in the fall of 2004.” Id.

The evidence at trial in this case was not overwhelming for guilt but instead

was inconsistent and questionable.

Prayer

Appellant prays this Court affirm the lower court’s opinion to reverse the

trial courts’ judgment, including its restitution order, and remand to the district

court for a new trial.

Respectfully submitted,

/S/ James F. Pons
James F. Pons
TXSBN 24041707
10900 N.W. Fwy., Ste. 230
Houston, TX 77092
Ph (832) 372 8138
Fax (713)869 8330

Certificate of Service and Compliance

This is to certify that: (a) the word count function of the computer program

used to prepare this document reports that there are 7,905 words in the relevant

33
sections and; (b) a copy of the foregoing instrument will be served on the

following via email to:

Eric Kugler
ADA
1201 Franklin, Suite 600
Houston, TX 77002
kugler_eric@dao.hctx.net

Lisa McMinn
State Prosecuting Attorney
Lisa_McMinn@SPA.texas.gov

/S/ James F. Pons
James F. Pons
TXSBN 24041707
10900 N.W. Fwy., Ste. 230
Houston, TX 77092
Ph (832) 372 8138
Fax (713)869 8330

34