


                                                                                                                             
 
 
 
 
NUMBER 13-10-00376-CR
 
COURT OF APPEALS
 
THIRTEENTH DISTRICT
OF TEXAS
 
CORPUS CHRISTI - EDINBURG  
                                                                                                                     

 
JOSE DE LEON PENA,                                                         
   Appellant,
 
v.
 
THE STATE OF TEXAS,                         
                             Appellee.
                                                                                                                     
  
 
On appeal from the
206th District Court 
of Hidalgo County,
Texas.
                                                                                                                     

 
MEMORANDUM OPINION
 
Before Justices Benavides,
Vela, and Perkes 
Memorandum Opinion by
Justice Perkes
 
After
a jury trial, Jose De Leon Pena, appellant, was convicted of the offense of
theft of property valued between $1,500 and $20,000, a state-jail felony, and
sentenced to 180 days of confinement in the State Jail Division of the
Texas Department of Criminal Justice.  See Tex. Penal Code Ann. § 31.03(e)(3)(a)
(West Supp. 2007).  The trial court suspended imposition of sentence, placed
appellant on community supervision for a period of three years, and ordered
appellant to pay $9,000 in restitution, court costs, and supervisory fees.  Appellant
challenges the sufficiency of the evidence, and argues that the evidence merely
demonstrates a civil contract dispute, and that it is insufficient to support a
finding of criminal intent to commit theft.  On appeal, the State concedes
error and requests this Court to grant appellant the requested relief.[1] 
We agree with the parties and reverse the conviction, dismiss the indictment,
and render a judgment of acquittal.            
i.  Factual Background
After firing their first contractor, Noe
Perez, the complainant, and his wife Maria Perez, approached appellant
regarding the construction of a new law office in the City of Edinburg.  Appellant
had owned his construction business, “J. Pena Construction,” for approximately
18 years, and had built hundreds of homes and numerous commercial structures. 
On May 14, 2008, the Perezes entered
into a written construction agreement with appellant.[2] 
The contract provided that appellant’s company would be paid a lump sum total
of $250,600 for the commercial construction project, and that a $2,000 non-refundable
deposit, would be paid upon execution of the agreement.  On May 27, 2008, the Perezes
gave appellant the $2,000 non-refundable retainer fee.[3] 

Prior to hiring appellant, the Perezes
had employed another contractor to draft the building plans; however, the plans
were not approved by the city.  Appellant testified that it took three to four
weeks to re-draft the original building plans, and that he met with various
city inspectors and the fire marshal during the process.  Appellant also
testified he provided the Perezes a copy of the final building plans which the
Perezes initialed.  On June 4, 2008, appellant applied for a commercial
building permit and paid a $350 fee.  On June 9, 2008, the commercial building
permit was approved, thereby allowing the construction of the project in a
residential area.  After the building plans were approved, appellant and the
Perezes attended a preconstruction meeting with the city.        
On June 9, 2008, the Perezes delivered a
$10,000 check, payable to J. Pena Construction, and which included the word
“Building” for the description.  Appellant testified the Perezes gave him the
check for him to commence construction, despite the fact their construction
loan had not yet been approved.  Both Noe and Maria Perez concurred that those
funds were given as an advance.  Appellant thereafter hired workers, marked
elevation and property lines, measured and marked the location where the
building was to be constructed, laid ground work by clearing three to four
inches of topsoil, hauled topsoil off the property, and brought in new dirt
which was compacted with a backhoe and tractor.  The building-plans examiner
concluded that all the work was completed to the extent possible until the loan
was approved.  
Noe Perez applied for a $246,500 bank loan
from the Bank of South Texas.  On July 17, 2008, his application was presented
to the loan
committee.  On August 18, 2008, the loan was approved, but appellant was not
approved as the builder.[4] 
Noe Perez’s options were to either apply for a loan with another bank or use another
builder, who could be approved by the bank.  He decided to use another builder,
notwithstanding the fact appellant had a signed contract with the Perezes and
appellant had already commenced work under the contract.  The contract did not
address this contingency and did not provide that the Perezes could in effect
fire appellant if the bank did not approve his company as the builder. 
Appellant wanted to continue his work under the contract and appellant’s bank
was willing to provide Noe Perez a loan at a half percentage point lower
interest.  Noe Perez, however, was not interested.  
In late August 2008, Noe Perez sent a
letter to the City of Edinburg Planning Department to notify it of the change
in builders.  Noe Perez did not know the date, but he testified that he called
appellant and asked for the money back, and that appellant said he would return
it in two weeks, during which appellant did not answer phone calls from the
Perezes.  Appellant testified that he did not answer because Noe Perez was
being aggressive, threatening that he had “friends in high places.”  
On November 4, 2008, a demand letter was
sent to appellant from the Law Office of Noe L. Perez seeking reimbursement of
building funds in the amount of $12,000.  In the demand letter, Noe Perez
stated that appellant had requested $2,000 for permit fees and $10,000 as an
“advancement.”  Noe Perez further asserted in the demand letter that he
received an unreasonable expense form from appellant for acquired expenses. 
The demand letter states the following, in relevant part:
This is my final
agreement on the fees.
 
You sent me an
Expense form which includes a total of $4,915.75 for acquired
expenses.  The total is unreasonable.  You are charging $2,505.75 for a Draft
(a computer print out), of the building plans.  The City of Edinburg never
received a copy of the Blue Prints.  They received a Draft of the building
plans when they issued out requested permits.  I never received a copy of the
Blue Prints, either.  Therefore, the amount of $2,505.75 for a “Draft” of the
building plans is not justifiable.  I will pay you $590 for the building Draft,
plus all other expenses you requested.  This adds up to a total $3,000
for any and all acquired expenses by you.  
 
(Emphasis in original).  In the letter, Noe Perez
concluded that he was therefore entitled to be reimbursed for a total amount of
$9,000, and that if appellant did not reimburse the money within ten days of
appellant’s receipt of the letter, further legal action would be taken.
            Noe Perez testified that, prior to filing a
police report, he sent appellant letters, he saw him at the courthouse, and appellant
acknowledged that he owed Noe Perez the money.  But Noe Perez also testified
that appellant sent him a letter indicating that Noe Perez owed appellant
$5,000 for blueprints of the building plans.  Noe Perez testified that he never
received a draft of the blueprints.  Noe Perez admitted, however, that
appellant had to redraw the building plans which had been drafted by the
previous contractor.  Noe Perez testified that it was “ridiculous” that appellant
wanted so much money and he concluded that appellant owed him $9,000.  Noe Perez
testified further that appellant did not produce receipts or an invoice for the
work he performed on the property.  The only check disbursement in evidence from
appellant’s bank account relating to Noe Perez’s property was the check for the
permit fee which was cleared on June 11, 2008.  
            Appellant testified that he submitted an
expense form to Noe Perez which only included the money he had paid on the
project and did not take into account the amount of time he and his staff
invested.  Appellant stated that although there was only one check paid from
his bank account [in evidence] relating to this project, he paid some
subcontractors with cash and he also had two other bank accounts.  Appellant
also testified that it was evident that the subcontractors were paid because no
liens were placed on the property.  
On December 9, 2008, Noe Perez filed a
police report, accusing appellant of theft of $10,000 and claiming appellant
never performed any work.  Investigator Joe Vega of the Edinburg Police
Department was assigned to the case.  Vega spoke over the phone with appellant
once or twice and testified that appellant said he would get around to it,
though the money was never returned.  Vega also testified that to his
recollection, Noe Perez failed to tell him of the construction agreement, that he
had not seen Noe Perez’s demand letter to appellant, and that he had not had
the benefit of seeing the commercial building permit or the building plans
appellant drafted.  Appellant was arrested on the felony charge of theft, and a
$10,000 cash bond was levied.  
ii.  Standard of Review
When
reviewing the legal sufficiency of the evidence, we examine 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 offense beyond a reasonable
doubt.  See Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Brooks
v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010) (plurality op.).  We
therefore determine whether any rational trier of fact could have found the
essential elements of theft beyond a reasonable doubt.  See Jacobs v. State,
230 S.W.3d 225, 229 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).
III.  Discussion
            We
measure the sufficiency of the evidence by the elements of the offense as
defined by a hypothetically correct jury charge.  Villarreal
v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing Malik
v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).  Such a charge is
one that accurately sets out the law, is authorized by the indictment, does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict
the State’s theories of liability, and adequately describes the particular
offense for which the defendant was tried.  Id.  
A person commits theft if he unlawfully
appropriates property with intent to deprive the owner of the property.  Tex. Penal Code Ann. § 31.03(a) (West
Supp. 2007). Appropriation of property is unlawful if it “is without the owner’s
effective consent.”  Id. §
31.03(b)(1).  “Consent” is not effective if it is induced by deception.  Id.
§ 31.01(3)(A) (West 2003).  As relevant under the indictment in this case,
deception means creating or confirming by words or conduct a false impression
of fact that is likely to affect the judgment of another in the transaction,
and that the actor does not believe to be true.  Id. § 31.01(1)(A).
A claim of theft made in connection with a
contract requires proof of more than an intent to deprive the owner of property
and subsequent appropriation of the property. Jacobs, 230 S.W.3d at 229
(citing Baker v. State, 986 S.W.2d 271, 274 (Tex. App.—Texarkana 1998,
pet. ref'd)).  If no more than intent and appropriation is shown in a contract
claim, nothing illegal is apparent, because under the terms of a contract, the individuals
typically have the right to “deprive the owner of property,” albeit in return
for consideration.  Id.  In a contract claim, the State must prove the
defendant did not perform the contract and knew he was not entitled to the
money, not merely that there is a dispute about the amount rightfully owed.  Id.
 The mere fact that one fails to return funds paid in advance after failing to
perform a contract does not constitute theft.  Id.  If money was
voluntarily given to the defendant pursuant to a contractual agreement and
there is insufficient evidence in the record to show the money
was obtained by deception, the conviction cannot stand.  Id. at 229–30
(citing Phillips v. State, 640 S.W.2d 293, 294 (Tex. Crim. App. 1982)).
 For purposes of a theft conviction, the relevant intent to deprive the owner
of his property is the accused’s intent at the time of taking possession of the
property.  Wilson v. State, 663 S.W.2d 834, 836–37 (Tex. Crim. App.
1984) (en banc).
In Phillips, the defendant
contracted with the complainants to build an addition to their house, and
accepted $6,930.33 as a down payment.  640 S.W.2d at 294.  As in the present
case, the money was paid voluntarily. See id.  The defendant took some
measurements and drew plans, but did not fully perform under the contract.  Id. 
The Court of Criminal Appeals reversed the defendant's conviction, holding
that proof of failure to perform is insufficient to prove theft by deception.  Id.
As
in Phillips, the evidence presented shows only a civil contract dispute,
and not the necessary criminal intent to support appellant's conviction.  There
is no evidence in the record that appellant did not fully intend to perform
under the contract when he accepted the $10,000, and the evidence showed it was
Noe Perez’s decision to choose another builder while appellant wanted to
continue working under the contract.  After the Bank of South Texas disapproved
appellant as the builder, appellant found a bank willing to approve him as
builder and make the loan at a lower interest rate.  Under every version of the
facts presented by the trial witnesses, appellant performed at least some of
the contractual work for the $10,000  While Noe Perez testified appellant had
an idea the bank would not approve him as the builder for the loan and his wife,
Maria Perez, testified it was her “impression” the $10,000 was a loan, there is
no evidence appellant did anything to create a false impression to induce the
complainant, Noe Perez, to pay him the $10,000.  We conclude the evidence is
legally insufficient to sustain appellant's conviction because there is no
evidence in the record of criminal intent to commit theft.  See id.; see
also Peterson v. State, 645 S.W.2d 807, 812 (Tex. Crim. App.1983) (en banc)
(reversing conviction when the evidence failed to show defendant contractor
obtained money by deception); Jacobs, 230 S.W.3d at 232 (reversing
conviction because the evidence did not show criminal intent to commit theft by
deception in a case involving a civil contract dispute between a contractor and
property owner).  Accordingly, we sustain appellant’s sole issue on appeal.    
IV.  Conclusion
Having concluded the evidence is
insufficient to support appellant’s conviction, we must acquit appellant.  See
Aldrich v. State, 296 S.W.2d 225, 230 (Tex. App.—Fort Worth 2009, pet.
ref’d); Jacobs, 230 S.W.3d at 232.  We therefore reverse the judgment of
conviction, dismiss the indictment, and render a judgment of acquittal.
 
                                                                        ______________________           
                                                                                    GREGORY
T. PERKES
                                                                                    Justice
 
Do not publish.
Tex.
R. App. P.
47.2(b).
 
Delivered and filed
the
30th day of August,
2011. 




[1]  While the State’s
confession of error in a criminal case is an important factor, it is not
conclusive and the appellate court must make an independent examination of the
merits of any issue raised on appeal.  Saldano v. State, 70 S.W.3d 873,
884 (Tex. Crim. App. 2004).
 


[2]  The agreement
provides all disputes under the contract shall be resolved by binding
arbitration in accordance with the rules of the American Arbitration
Association.  Appellant testified the complainant wanted to “strike . . . out”
the arbitration clause, but that did not happen and the arbitration clause was
agreed upon.  
 


[3]
Although the
Perezes both testified they believed the $2,000 deposit was for permits and
dirt, they later clarified on cross-examination that the $2,000 was actually
the non-refundable retainer.


[4]  The record shows
the Bank of South Texas later approved appellant as the builder on a large unrelated
commercial project.  According to appellant’s testimony, the bank’s disapproval
of him as to Noe Perez’s building was based on erroneous information given by a
third party. 


