Phares v. State

HOLLIS HORTON, Justice,

dissenting.

In its opinion, the majority holds that the evidence is legally insufficient to support the jury’s verdict. Although it applies the proper standard, in my opinion, *353the majority does not apply the standard properly to the facts of this case. In reviewing a record for legal sufficiency, we review all of the evidence in the light most favorable to the verdict and determine whether, based on the evidence and reasonable inferences from the evidence, rational jurors could have found the essential elements of the crime beyond a reasonable doubt. See Roberts v. State, 273 S.W.3d 322, 326 (Tex.Crim.App.2008) (citing Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

All of the decisions the majority cites in reaching its conclusion were decided prior to the Texas Court of Criminal Appeals’ decision in Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991), overruled on other grounds, 28 S.W.3d 570 (Tex.Crim.App.2000). As criticized and rejected in Geesa, “focusing on the existence of an ‘outstanding reasonable hypothesis inconsistent with the guilt of the accused’, at least where the hypothesis of innocence stems from inconsistencies in the evidence presented at trial, effectively repudiates the jury’s prerogative to weigh the evidence, to judge the credibility of the witnesses, and to choose between conflicting theories of the case.” Id. at 159. In my opinion, the majority focuses on the existence of a contractual relationship between the parties and Phares’s partial performance of that contract in reaching its conclusion that there is no evidence to demonstrate that Phares, from the relationship’s beginning, intended to steal from the homeowners.

In my opinion, the evidence before the jury allowed it to conclude that Phares did not intend to fulfill the contract from its outset. The evidence shows that Phares contracted with the homeowners to remove and replace the vinyl siding from their home. The contract, dated May 1, 2006, reflects that Phares was to receive a “draw on material” in the amount of $7,100.00. On that same date, Phares was given a check for $7,100.00; the check’s memorandum field recites: “For material-house.” Subsequently, according to one of the homeowners, Phares came for two or three days with two other workers and removed “about half’ of the vinyl siding from the house. With respect to the materials specified in the contract, the evidence reflects that Phares purchased and had delivered insulation at a cost of approximately $1,300.00. According to one of the homeowners, Phares never installed the insulation.

On May 12, Phares asked for an additional $2,000.00. Phares told one of the homeowners he needed the money because “the money that we had given him [ ] was used on the material, and he needed additional money to pay the workers for what they had already done....” On that same day, the homeowner gave Phares an additional check for $2,000.00. After that, neither Phares nor his workers returned to work on the home, nor were any additional materials delivered to the homeowners. In July, the homeowners sent Phares a letter, requesting that he complete the job or give them a full refund. Phares did not respond.

In summary, the record reflects that Phares received at least $7,100.00 that was specifically designated as being for the purchase of materials. According to Phares, he purchased approximately $1,300.00 of insulation materials.1 He never purchased any additional insulation or the vinyl, all of which would have been required to complete the terms of his con*354tract. After he was presented a demand for a full refund, Phares failed to make any refund, despite the fact that he had received $7,100.00 for materials and acknowledged spending much less than that amount on the materials specified in the contract. In my opinion, reasonable jurors could infer from these facts that, from the moment he entered the contract, Phares never intended to purchase the materials required to complete the contract. The existence of the contract and the fact that he partially fulfilled the contract are only circumstances of a reasonable hypothesis of innocence; the existence of these facts should not remove from the jury — through the guise of our review of legal sufficiency — the right to weigh the evidence to determine Phares’s intent at the outset of his contractual relationship with the homeowners. Thus, even though the evidence conflicts, a reasonable juror could conclude that Phares committed felony theft. Because the majority holds that the evidence is legally insufficient to support the jury’s verdict, when in my opinion it is not, I respectfully dissent.

. Phares also testified that after the work started, he purchased additional material that he did not consider as being included within the original contract price. Phares testified that he spent about $1,600.00 on these materials. Even if we include the expenditures for materials that were not initially included in the contract price, the threshold amount of *354$1,500.00 necessary to establish the commission of felony theft was still proven. See Tex. Pen.Code Ann. § 31.03(a), (e)(4)(A) (Vernon Supp. 2009).