

Opinion issued
June 16, 2011
 

In
The
Court of
Appeals
For
The
First District
of Texas
————————————
NO. 01-10-00345-CR
———————————
Mark Bounds, Appellant
V.
THE
State of Texas, Appellee

 

 
On Appeal from the County
Court at Law No. 1
Galveston County, Texas

Trial Court Case No. 296371
 

 


 
O P
I N I O N
 
          Appellant
challenges his conviction for deceptive business practices.[1]  After he pleaded not guilty, a jury found appellant
guilty, and the trial court sentenced him to 365 days’ confinement, suspended
the sentenced, placed him on community supervision for two years, and ordered
that he pay restitution of $10,200.  In his
sole issue, appellant challenges the legal sufficiency of the evidence to
sustain his conviction.  We conclude the
evidence is legally insufficient.  We
therefore reverse and render a judgment of acquittal.
Background
          Candee
Hoff owns a home in Galveston County that was damaged by Hurricane Ike.  Hoff wanted to repair her home and to replace
the flat roof with a peaked roof that contained an attic storage area.  She retained an architect and engineering
firm to prepare plans.  Another
contractor introduced Hoff to appellant, who was fully credentialed and bonded
for the work in question.  After inspecting
the home and the engineering plans for the work, appellant made an oral offer
to make the repairs and replace the roof for $36,000.  On April 8, 2009, Hoff accepted the offer,
even though appellant’s bid was not the lowest she had received.   Hoff paid appellant $12,000 up front.  A few days later, appellant and Hoff signed a
written agreement covering the repairs and addition, including “materials &
labor,” for the agreed price of $36,000. 
The contract did not specify that Hoff pay in advance, make interim
payments, or pay upon completion of the work.
          On
April 13, a building permit was issued and appellant’s crew began work.   Appellant asked Hoff to purchase windows for
the project.  Hoff did so.  On April 21, appellant requested an
additional $12,000.  Hoff paid $6,000
because appellant had only been working on the house for eight days.  By July, Hoff had already paid appellant a
total of $23,499.51 towards the full contract price of $36,000.  In addition, Hoff purchased $7,135.51 worth
of the construction materials herself because of appellant’s complaints that
the project was too costly.  At appellant’s
request, she also directly paid $2,000 to a crew appellant hired to install
plywood.  Hoff testified that she paid appellant
the additional money and purchased the additional materials because appellant said
he would have to “pull his guys off the job” if she did not.  
          On
July 28, appellant told Hoff he needed yet more money or she needed to purchase
additional siding.  By this time, Hoff
had paid appellant $23,499.51 and directly paid $9,135.51 for materials or
labor for the job, for a total of $32,635.02.  Hoff refused. 
She told him she would finish paying him when the job was completed.  She testified that she had paid more than 90
percent of the contract price, but she did not have walls, doors, insulation,
or the stairs to the storage area addition. 
Appellant told her that if she did not pay or purchase siding, he would
pull his crew from the house.  Hoff still
refused to pay, and appellant pulled his crew. 
Hoff estimated that only 60 percent of the project had been completed.  Hoff also testified that she did not change
the plans or the terms of the agreement during the construction progress.  Hoff had no complaints about the quality of
the work.
          On
August 3, appellant returned to retrieve his tools from Hoff’s property.  She asked him to return a new saw she had
purchased.  When he refused, she asked
him to leave.  Appellant called the
sheriff’s office to help him retrieve his tools.  An officer responded and, after talking to appellant
and Hoff, told appellant to return the saw or he would call the district
attorney’s office.  Appellant left and
returned with a saw.  He got the rest of
his tools and left.  The officer told Hoff
she should see the district attorney, and the next day, August 4, she filed the
complaint that led to this prosecution. 
The jury convicted appellant of selling less than the represented
quantity of goods on August 4, 2009, the day after he pulled his crew.
Standard of Review
          This court reviews
sufficiency-of-the-evidence challenges applying the standard of review
enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
2789 (1979).  See Ervin v. State, 331 S.W.3d 49, 52–55 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (construing
holding of Brooks v. State, 323 S.W.3d 893, 912, 927–28 (Tex. Crim. App.
2010)).  Under this standard, evidence is
insufficient to support a conviction if, considering all the record evidence in
the light most favorable to the verdict, no rational factfinder could have
found that each essential element of the charged offense was proven beyond a
reasonable doubt.  Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Laster
v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007).  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 See Jackson, 443 U.S. at 314, 320, 99 S. Ct.
at 2786, 2789; see also Laster, 275 S.W.3d at 518; Williams, 235
S.W.3d at 750.  
The sufficiency-of-the-evidence
standard gives full play to the responsibility of the factfinder to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.  Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex.
Crim. App. 2007); see also Brown v. State,
270 S.W.3d 564, 568 (Tex. Crim. App. 2008) (stating jury is sole judge of
credibility of witnesses and weight to give their testimony).  An
appellate court presumes that the factfinder 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; see also Clayton, 235 S.W.3d at 778 (reviewing court
must “presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination”).  
Sufficiency of the Evidence
          Appellant
contends that the evidence is legally insufficient to sustain his conviction
because it fails to establish that he had a culpable mental state. 
          The
Texas Penal Code provides, “A person commits an offense if in the course
of business he intentionally, knowingly, [or] recklessly . . . commits one or
more of the following deceptive business practices: . . . (2) selling less than
the represented quantity of a property or service . . . .”[2]  Tex. Penal Code Ann. § 32.42(b)(2) (West 2003).  Both the requisite criminal mental state and
the prohibited act must be proven to convict the accused.  See
Blackman v. State, No. 01-08-00138-CR, 2009 WL 5064763, at *4 (Tex.
App.—Houston [1st Dist.] June 16, 2010, pet. granted) (person commits offense
if person “engages in the proscribed conduct with the culpable mental state”). 
“Sell” and “sale” are defined to include
“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.”  Tex.
Penal Code Ann. §
32.42(a)(9).  Appellant
does not challenge the sufficiency of the evidence of
whether he sold Hoff less than he promised. 
His challenge solely addresses whether the evidence shows the necessary
mental state at the relevant time.  
          The mental
state criminalized is the state of mind that contemplates the prohibited result.  Haggins v. State, 785 S.W.2d 827, 828 (Tex. Crim. App.
1990).  Here the statute includes the
culpable mental states of intentionally, knowingly, and recklessly. “Proof of a
higher degree of culpability than that charged constitutes proof of the culpability
charged.”  Tex. Penal Code Ann. § 6.02(e) (West Supp. 2010).  Thus, the State was required to prove at
least recklessness.  
          A person acts
recklessly with respect to his conduct when he is aware of but consciously
disregards a substantial and unjustifiable risk that the result will occur. Tex. Penal Code Ann. § 6.03(c) (West
2003).  “The risk must be of such a
nature and degree that its disregard constitutes a gross deviation from the
standard of care that an ordinary person would exercise under all the
circumstances as viewed from the actor’s standpoint.”  Id. 
A person’s culpable mental state is generally shown by circumstantial
evidence.  See Moore v. State, 969
S.W.2d 4, 10 (Tex. Crim. App. 1998); see also Tottenham v. State, 285 S.W.3d 19, 28 (Tex. App.—Houston [1st Dist.]
2009, pet. ref’d) (“proof of a culpable mental state almost invariably depends
on circumstantial evidence”). 
          Appellant
contends that the State had to prove that he had a culpable mental state
of defrauding Hoff when he entered the contract, not later after he began the
work, and there is no evidence of any culpable mental state at that time.  Appellant specifically argues
that the statute prohibits “selling” less than the represented quantity of
property or service and that the sale in this case occurred when the contract
was signed.  Appellant cites no
authority to support this proposition. 
The State responds that appellant’s mental state at
the time he entered the contract is irrelevant. 
Instead, the State argues that it was required “to prove appellant’s
intent at the time he had [Hoff’s] money, but chose to no longer deliver his
services.”  The trial
court instructed the jury to find appellant guilty
if it found beyond a reasonable doubt that he intentionally, knowingly, or
recklessly sold less than the represented quantities of a good or service on
August 4, 2009, the day he walked off the job.  
          We, however,
do not address this specific issue, because we conclude the evidence is insufficient
to show appellant had a culpable mental state at either time.  To prove appellant’s guilt,
the State was required to present evidence of circumstances from which a
rational jury could infer that appellant acted at least
recklessly—that is, that appellant was aware of but consciously
disregarded a substantial and unjustifiable risk that the result (here the sale
of less than the  represented quantity of
property or services) would occur.  See Tex.
Penal Code Ann. §§ 6.03(c), 32.42(b)(2).  To
determine whether conduct is reckless, we must look to: (1) whether the act, when viewed
objectively at the time of its commission, created a “substantial and
unjustifiable” risk of the type of harm that occurred, (2) whether that risk
was of such a magnitude that disregard of it constituted a gross deviation from
the standard of care that a reasonable person would have exercised in the same
situation, (3) whether the defendant was consciously aware of that risk, and
(4) whether the defendant consciously disregarded that risk.  See Williams, 235 S.W.3d at 755–56.  In other words, the State was required to
prove that appellant “actually fore[saw] the risk and consciously decide[d]
to ignore it.”  See id. at 751–52 (it is that “devil may care” or “not giving a
damn” attitude that raises conduct from criminal negligence to recklessness). 
          First, we
note that there is no evidence, direct or circumstantial, suggesting that appellant
had a culpable state of mind at the time he entered the agreement with
Hoff.  Within days of receiving the first
payment, he presented Hoff with the written agreement.  He also got a building permit and began work.  There is no evidence that his finances were
such to require him to receive an immediate infusion of cash through a
one-third advance payment or that he obtained the contract through an
inordinately low bid.  A rational juror
could not infer from these circumstances that, at that time, appellant
did not intend to perform under the contract.
          Concerning appellant’s
state of mind on August 4 when he walked off the job, the State did prove that appellant,
having received approximately 90% of the contract price, did only approximately
60% of the work.  Nothing in the record,
however, supports a reasonable inference that appellant was consciously
aware of a “substantial and unjustifiable” risk that the contract would not be
completed and the services delivered at that time.  The contract was silent concerning when Hoff
had to pay for the services rendered. 
The evidence does not show the amount of the money requested by appellant
to pay for siding at the end of July or the amount of additional siding needed
for the project.  At that time, another
$3,364.48 was still outstanding on the agreed contract price.  The record does not show that appellant
was demanding more money than he was due under the parties’ agreement.  Nor does the record show any discussion
between appellant and Hoff in which appellant requested
additional payment beyond the contract price. 

          Additionally,
while the work may have only been 60% complete, there was no evidence on the
cost to complete the project; the most expensive labor-intensive portion of the
project or the materials that were the most expensive may have been part of
that 60%.  Although construction work was
ongoing at the time of trial, there was no evidence of the costs incurred for
the repairs and the addition.  There was
no evidence regarding the costs to complete the siding or other work started by
appellant.  Hoff also did
not know whether her engineer had modified the plans used for the contract and
testified that her engineer might not have notified her of modifications.  The engineer admitted some changes were necessary
after construction began.  He stated
there were “no major discrepancies” and did not identify any discrepancies or
estimate the cost of correcting any discrepancy.  The contract did not provide details on the
work to be performed by appellant.  During construction of the project, appellant
made various repairs required by Hoff’s engineer.  Appellant also called the
appropriate government building inspector for permit inspections, made changes
as required by the inspector, and was working with the inspector to ensure
everything passed inspection.  Hoff
admitted that appellant installed three windows that were
not covered by the written contract but the costs associated with that
additional work were not in the record.  There
is no evidence that appellant intentionally underbid the project,
with the design of seeking additional payments above the contract price once
the work was underway.  In fact, the
record shows that appellant’s bid was not the lowest that Hoff
received.
          The record in
this case contains no evidence, or even a “modicum” of evidence, that appellant
with at least a mental state or recklessness sold less than a represented
quantity of a property or service.  It
is, therefore, insufficient to sustain his conviction.  See Jackson, 443 U.S. at 314, 320, 99
S. Ct. at 2786, 2789.
          We sustain appellant’s
first issue.
Conclusion
          We reverse
the judgment of the trial court and render a judgment of acquittal.
 
                                                                   Harvey
Brown
                                                                   Justice

 
Panel consists of Justices
Jennings, Higley, and Brown.
Publish.   Tex. R. App. P. 47.2(b).




[1]           See
Tex.
Penal Code Ann. §
32.42(b)(2) (West 2003).


[2]
       Section
32.42(b) includes the culpable mental state of criminal negligence.  See
Tex. Penal Code Ann. § 32.42(b)(2) (West 2003).  The jury charge, however, only listed the
mental states of intentional, knowing, or reckless.


