                                 MEMORANDUM OPINION
                                         No. 04-11-00477-CR

                                      Amador L. RODRIGUEZ,
                                             Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 290th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2008CR10714
                             Honorable Melisa Skinner, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice

Delivered and Filed: July 11, 2012

AFFIRMED

           Amador L. Rodriguez was convicted of theft and sentenced to eight months in state jail

and a fine of $2100. He appeals arguing that the evidence is insufficient to support his

conviction. We affirm.

                                            BACKGROUND

           Richard O’Bryant, the complainant, testified at trial that in 2007, he purchased an older

home in the historical district of King William in San Antonio, Texas. He had hired a contractor
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to perform renovations on the home. After O’Bryant moved in to the newly renovated home, he

decided to start what he called “the garage project.” O’Bryant testified that “the idea was to build

a nice two-car garage a little oversized, oversized doors, make it really nice, and to have a second

story above that I could use for storage or set up as an efficiency apartment.” O’Bryant hired his

“regular contractor,” David Lopez, to construct the garage. Lopez poured the slab, the size of

which had already been approved by the City. However, O’Bryant testified that when he decided

to build a two-story garage, instead of a one-story, he was told by the City that before he could

obtain a permit to build a two-story garage, he needed “to get an engineer to inspect the slab and

certify that it will hold a two-story structure.” O’Bryant testified that his contractor referred him

to Appellant Amador Rodriguez. O’Bryant told Rodriguez that he needed a letter from a

professional engineer certifying the slab. According to O’Bryant, Rodriguez replied, “I can give

you an engineered letter. I’m an engineer. I can give you the letter. Let me go look at the slab. I

[have] to look at it first.” Rodriguez inspected the slab and provided a letter, certifying that he

had inspected the foundation and that in his opinion the existing foundation was “more than

adequate to carry the loads of a two-story construction using the conventional wood stud frame

construction.” The letter was signed by Amador Rodriguez and had a seal reflecting Rodriguez’s

name and Professional Registered Engineer No. 49380. O’Bryant paid Rodriguez $250.

       When O’Bryant gave the letter to city officials, he was told that he also had to provide

“engineered plans.” O’Bryant was told that he could not use drawings for a two-story structure,

but that he needed plans created by a licensed engineer. O’Bryant testified that “the next step

was getting the drawings and when . . . the engineer drawings are approved by the City,” then he

could “take the approved plans over to the permit desk and get a permit so that my contractor”

could begin working on the garage. So, O’Bryant called Rodriguez and said that he needed plans



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created by an engineer for the two-story garage. O’Bryant gave Rodriguez drawings that an

architect had made of the proposed garage and asked Rodriguez if he could take the drawings

and make them “into engineered plans.” Rodriguez agreed. O’Bryant paid Rodriguez $700 up

front and agreed to pay Rodriguez another $1150 upon completion. Rodriguez gave O’Bryant the

completed plans, which reflected Rodriguez’s seal certifying he was a licensed professional

engineer. O’Bryant then took the plans to the City’s engineering board. O’Bryant was later

informed by the board that the plans would not be approved because the number on the

engineer’s seal was not assigned to Rodriguez. Thus, O’Bryant was told he had not submitted

valid plans prepared by a licensed professional engineer. O’Bryant then called the Texas Board

of Professional Engineers and was told that the number on his plans had been assigned to an

engineer who is deceased. O’Bryant testified that he would not have hired Rodriguez if

Rodriguez had not represented that he was a licensed professional engineer.

        O’Bryant testified that he then sent a certified letter to Rodriguez, demanding that

Rodriguez return the $2100 O’Bryant had paid. When Rodriguez did not respond, O’Bryant filed

a complaint with police.

        David Howell of the Texas Board of Professional Engineers testified that upon passing

exams administered by the Board, a person is issued a license and becomes a licensed

professional engineer. 1 Each license has a number that is unique to one person, and once a

license is issued, the Board requires the licensee to have a seal made with the licensee’s assigned

number. According to Howell, the seal has the person’s name and assigned number on it.

Licensed engineers are required to place the seal on their drawings. Howell testified that License

No. 49380 is registered to Julian Ybarra, who passed away in 1998. Ybarra’s license expired on

1
  Howell testified that the current term is “licensed professional engineer.” The former term had been “licensed
registered engineer.” The seal on the letter Rodriguez wrote to the City reflected that Rodriguez was a “licensed
registered engineer.”

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March 31, 1999. Howell also testified that License No. 49380 would never be reissued to another

person and has not been reissued to another person. Howell was then asked to look at State’s

Exhibit No. 2, which depicted the seal with Rodriguez’s name. Howell confirmed that the

number on Rodriguez’s seal, No. 49380, is the number assigned to the deceased Julian Ybarra.

Howell also testified that the Board had never issued a license to Rodriguez.

       Among the exhibits admitted into evidence were the following State exhibits: the letter

Rodriguez wrote to the City Building Inspector regarding the foundation; the demand letter

O’Bryant sent Rodriguez; a copy of a computer printout showing that Professional Engineer

License No. 49380 was assigned to Julian Ybarra, who is deceased; a copy of Ybarra’s

application for his engineer license; and a copy of Ybarra’s obituary. The defense called one

witness, Michael Fortney, a private investigator. Fortney testified that he was easily able to

create a seal with Rodriguez’s name by copying and pasting from the internet.

                                          DISCUSSION

       Rodriguez argues that the evidence is insufficient to support his conviction for theft. In a

federal due-process evidentiary-sufficiency review, we view all 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319 (1979); Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011), cert. denied, 132 S.

Ct. 1763 (2012). The court of criminal appeals has explained that this standard “recognizes the

trier of fact’s role as the sole judge of the weight and credibility of the evidence after drawing

reasonable inferences from the evidence.” Adames, 353 S.W.3d at 860. Therefore, on appellate

review, we determine whether based on “cumulative force of all the evidence” the necessary

inferences made by the trier of fact are reasonable. Id. We conduct this constitutional review by



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measuring the evidentiary sufficiency with “explicit reference to the substantive elements of the

criminal offense as defined by state law.” Id.

       A person commits theft “if he unlawfully appropriates property with intent to deprive the

owner of property.” TEX. PENAL CODE ANN. § 31.03(a) (West 2011). Appropriation 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 or coercion.” Id. § 31.01(3)(A). In this case, the jury was charged that

“deception” means “creating or confirming by words or conduct a false impression of law or fact

that is likely to affect the judgment of another in the transaction, and that the actor does not

believe to be true.” Id. § 31.01(1)(A).

       In his brief, Rodriguez argues that O’Bryant hired Rodriguez “to help him lie to the City

of San Antonio.” According to Rodriguez, a building permit must be obtained before a slab is

poured. He argues that because O’Bryant’s contractor had already poured the slab for the garage,

O’Bryant hired him to deceive the City, by certifying that he had inspected the foundation before

the concrete was poured. Rodriguez contends there is no evidence that he created or confirmed

by words or conduct a false impression that led O’Bryant to act. According to Rodriguez,

“[w]hile [Rodriguez] may have lied to the City, the State failed to prove that [Rodriguez] lied to

O’Bryant.” Rodriguez also argues that “[a]lthough the State may have introduced evidence that

[Rodriguez] and [O’Bryant] acted to deceive the City of San Antonio, there was no evidence

established that [Rodriguez], from the outset, intended to deceive [O’Bryant] in a ruse to

accomplish theft of [O’Bryant]’s money.” Further, Rodriguez argues that even if he either

through his words or actions, caused O’Bryant to hire him to draft a letter and draw plans for

O’Bryant’s garage apartment, Rodriguez’s actions could not have constituted deception under

the Penal Code definition, “because the agreement between the two men was a nullity from the



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start.” According to Rodriguez, any contract between him and O’Bryant was illegal and thus

void because a “contract to do a thing which cannot be performed without violation of the law

violates public policy and is void.”

       The State responds that Rodriguez’s entire argument is premised on two factual

assertions not supported by the record: (1) a building permit must be obtained before a slab is

poured; and (2) O’Bryant hired Rodriguez to deceive the City. We agree the record does not

support these assertions. In support of his argument that O’Bryant and Rodriguez entered into a

contract to perform an illegal act, Rodriguez points to the letter that Rodriguez wrote certifying

the slab. In that letter, Rodriguez wrote the following:

       Prior to the placement of concrete, approximately two (2) months ago A.L.R. and
       Associates performed an inspection at the above named residence proposed
       single-story garage of the foundation forms, beam reinforcing and main slab
       reinforcing and found that the overall construction of the foundation was built
       according to today’s construction industry.

Rodriguez claims that the false statement in his letter that he had inspected the foundation prior

to the placement of the concrete affirmatively establishes that O’Bryant and Rodriguez agreed to

perform an illegal act. We disagree. There is no evidence in the record regarding the propriety of

obtaining a building permit after the pouring of a concrete foundation. That is, there is no

evidence that O’Bryant, by hiring Rodriguez to inspect the foundation after the slab had been

poured, was hiring Rodriguez to perform an illegal act and deceive the City. Further, when asked

about this statement in Rodriguez’s letter, O’Bryant testified that he was “not aware of that.”

       There is, however, evidence that Rodriguez represented himself to O’Bryant to be a

licensed professional engineer, that Rodriguez represented that he could perform the work

required, that O’Bryant believed Rodriguez was a licensed engineer, and that O’Bryant would

never had hired Rodriguez if he had known Rodriguez was not a licensed professional engineer



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because only drawings prepared by a licensed engineer would be accepted by the City. There is

also evidence that Rodriguez provided O’Bryant with a letter and drawings containing a seal

bearing Rodriguez’s name, the term “Professional Engineer,” and a license number, which was

not assigned to Rodriguez but to an engineer who is deceased. Finally, there is evidence that

Rodriguez had never been licensed as an engineer by the State of Texas. From this evidence, a

rational juror could conclude that Rodriguez knew he was not a licensed professional engineer,

that he falsely represented to O’Bryant he was a licensed professional engineer, and that his false

representation of fact affected O’Bryant’s judgment concerning their transaction. See TEX.

PENAL CODE ANN. § 31.01(1)(A).

       We note that Rodriguez argues that the facts giving rise to this case are not criminal, but

should have been settled in civil court. “A claim based upon malfeasance in connection with a

contract requires proof of the false pretext or fraud in order to become a viable criminal

prosecution.” De La Fuente v. State, 264 S.W.3d 302, 317 (Tex. App.—San Antonio 2008, pet.

ref’d) (quotation omitted). “If no more than intent and appropriation is shown in a contract claim,

nothing illegal is apparent, because under the terms of the contracts individuals typically have

the right to ‘deprive the owner of property,’ albeit in return for consideration.” Id. (quotation

omitted). “The mere fact that a person failed to return money after failing to perform a contract

does not, by itself, constitute theft.” Id. “Criminal intent may be inferred from the defendant’s

conduct and the surrounding circumstances.” Id. Thus, for this case to amount to theft rather than

a mere civil dispute, the State had to prove that Rodriguez “had no intention of fulfilling his

obligations” under the contract, and “his promises to perform were merely a ruse to accomplish

theft by deception.” Id. Here, there is evidence that O’Bryant needed an engineer to certify his

foundation and prepare plans. There is evidence that O’Bryant hired Rodriguez because



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Rodriguez represented himself to be a licensed professional engineer. There is also evidence that

Rodriguez’s seal reflected a license number that belonged to a deceased person and that

Rodriguez has never been licensed as an engineer. Therefore, there is evidence from which a

rational juror could conclude that Rodriguez had no intention of fulfilling his obligations under

the contract because he knew he was not a licensed professional engineer and thus did not have

the professional qualifications to complete the contract. We hold that the evidence is sufficient to

support Rodriguez’s conviction for theft.

                                            CONCLUSION

       We affirm the judgment of the trial court.


                                                  Karen Angelini, Justice

Do not publish




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