Opinion filed May 6, 2016




                                      In The


        Eleventh Court of Appeals
                                    __________

                               No. 11-14-00148-CR
                                    __________

                            JERRY FLORES, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                    On Appeal from the 142nd District Court
                            Midland County, Texas
                        Trial Court Cause No. CR40451


                     MEMORANDUM OPINION
      Jerry Flores appeals his jury conviction for theft over $1,500 but less than
$20,000. The trial court assessed his punishment at confinement for a term of two
years in the State Jail Division of the Texas Department of Criminal Justice but
suspended the sentence and placed Appellant on community supervision for a term
of five years. The trial court also ordered Appellant to pay $3,600 in restitution. In
one issue on appeal, Appellant challenges the sufficiency of the evidence supporting
his conviction. We affirm.
                                           Background Facts
        In 2011, Brian and Constance Bradley desired to purchase a house. Constance
saw an advertisement on Craigslist for a house listed for sale by Appellant and his
wife, Clare. Constance contacted Appellant, and the parties began negotiations for
the purchase of the house by the Bradleys. The parties negotiated the terms of the
purchase over multiple meetings. Brian testified that he asked Appellant during the
negotiations whether there was a mortgage on the property. Brian testified that
Appellant represented that he and his wife owned the house outright and that there
was no mortgage on the house; “[h]e told me they owned it free and clear.”
However, there was in fact a mortgage on the house. Constance testified that, had
she and Brian known there was a mortgage on the house, they would not have signed
the contract to purchase the home.
        The parties subsequently came to an agreement on the purchase terms, and
they signed a typewritten “rent-to-own contract” agreement on May 16, 2011.1 That
same day, the Bradleys paid Appellant $6,000 as a cash down payment. The
Bradleys moved into the house and began making payments under the contract in
July. In October, the Bradleys received a notice on their front door giving them three
days to vacate the property. In this regard, Appellant and his wife had stopped
making mortgage payments on the property. The bank holding the mortgage
foreclosed on the property and sold it at auction. Clare subsequently acknowledged
that she owed the Bradleys money, and she paid them approximately $3,800 to avoid
prosecution.




        1
            The parties conducted the negotiations and prepared the contract without the assistance of an
attorney.

                                                     2
                                       Analysis
      In his sole issue, Appellant challenges the sufficiency of the evidence to prove
criminal intent. We review a sufficiency of the evidence issue under the standard of
review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
of the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). When conducting a sufficiency review, we consider all the
evidence admitted at trial, including pieces of evidence that may have been
improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App.
2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to
the factfinder’s role as the sole judge of the witnesses’ credibility and the weight
their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts
for the factfinder’s duty 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; Clayton, 235 S.W.3d at 778. When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of the
verdict and defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235
S.W.3d at 778.
      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 Supp.
2015). Appropriate means “to acquire or otherwise exercise control over property
other than real property.” Id. § 31.01(4)(B). An intent to deprive an owner of his
property means an intent “to withhold the property from the owner permanently or
for so extended a period of time that a major portion of the value or enjoyment of
                                          3
the property is lost to the owner.” Id. § 31.01(2)(A). Appropriation of property is
unlawful if it “is without the owner’s effective consent.” Id. § 31.03(b)(1).
      The indictment alleged that Appellant committed theft of money “by
deception” from Constance by acquiring money from her without her effective
consent. Consent is not effective if it is induced by deception. Id. § 31.01(3)(A).
When the State charges theft by way of deception, it is bound to prove deception.
Fernandez v. State, 479 S.W.3d 835, 838 (Tex. Crim. App. 2016) (citing Geick v.
State, 349 S.W.3d 542, 548 (Tex. Crim. App. 2011)). To prove theft by deception,
the State must show that the owner of the misappropriated property was induced to
consent to its transfer because of a deceptive act of the defendant. Id. (citing
Daugherty v. State, 387 S.W.3d 654, 659 (Tex. Crim. App. 2013)). “That is, the
defendant’s deceptive act must impact the judgment of the property owner in the
transaction.” Id.
      The Texas Penal Code provides the following five alternative definitions for
“deception”:
             (A) creating or confirming by words or conduct a false im-
      pression 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;
            (B) failing to correct a false impression of law or fact that is likely
      to affect the judgment of another in the transaction, that the actor
      previously created or confirmed by words or conduct, and that the actor
      does not now believe to be true;
             (C) preventing another from acquiring information likely to
      affect his judgment in the transaction;
             (D) selling or otherwise transferring or encumbering property
      without disclosing a lien, security interest, adverse claim, or other legal
      impediment to the enjoyment of the property, whether the lien, security
      interest, claim, or impediment is or is not valid, or is or is not a matter
      of official record; or


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            (E) promising performance that is likely to affect the judgment
      of another in the transaction and that the actor does not intend to
      perform or knows will not be performed, except that failure to perform
      the promise in issue without other evidence of intent or knowledge is
      not sufficient proof that the actor did not intend to perform or knew the
      promise would not be performed.
PENAL § 31.01(1). The trial court provided the jury with the first, second, fourth,
and fifth definitions of deception in the court’s charge. The State directs our
attention to the first, second, and fourth definitions in responding to Appellant’s
sufficiency challenge.
      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. Wirth v. State, 361 S.W.3d 694, 697 (Tex. Crim. App. 2012). In that
circumstance, the State must prove that the appropriation was a result of a false
pretext, or fraud. Id. To constitute theft by deception, the victim’s consent to the
defendant’s control over the property must be “induced by deception,” meaning that
the victim relied on the defendant’s deceptive act when giving his consent.
Demond v. State, 452 S.W.3d 435, 453 (Tex. App.—Austin 2014, pet. ref’d) (citing
PENAL § 31.01(3)(A)); see also Daugherty, 387 S.W.3d at 659 n.18 (citing Swope v.
State, 723 S.W.2d 216, 223 (Tex. App.—Austin 1986), aff’d on other grounds, 805
S.W.2d 442 (Tex. Crim. App. 1991) (concluding that reliance upon the defendant’s
deception is an element of theft by deception)). “The reliance need not be the sole,
or even controlling, reason why the victim decided to provide [his consent], but it
must be a substantial or material factor in the decision-making process.” Daugherty,
387 S.W.3d at 659 n.18 (internal citations omitted).
      “[W]hen a defendant is charged with theft by deception, consent must be
induced by deception. In such a circumstance, the consent given is ineffective.”
Bozeman v. State, No. 06-10-00055-CR, 2012 WL 112532, at *5 (Tex. App.—

                                         5
Texarkana Jan. 12, 2012, no pet.) (mem. op., not designated for publication).
Viewing the evidence in the light most favorable to the verdict, a rational trier of
fact could have found that Appellant—by deception—induced the Bradleys to
consent to the transaction by representing that the property did not have a mortgage
on it. We conclude that this misrepresentation about the title to the property
constituted deception. In this regard, Appellant created or confirmed by words or
conduct a false impression of law or fact, and he failed to correct a false impression
of law or fact that was likely to affect the Bradleys’ judgment in the transaction. See
PENAL § 31.01(1)(A), (B). Additionally, he transferred property without disclosing
a lien, security interest, adverse claim, or other legal impediment to the enjoyment
of the property. See id. § 31.01(1)(D). Furthermore, the Bradleys testified that they
relied upon Appellant’s misrepresentation that he and his wife owned the property
“free and clear” and that they would not have entered into the agreement had
Appellant told them otherwise.
      Appellant offers several arguments why his conduct does not rise to the level
of criminal culpability. He first asserts that he provided partial performance to the
Bradleys by allowing them use and enjoyment of his home for more than five
months. Some Texas cases have recognized that, if a contract is partially or
substantially performed, then the intent to commit theft through deception is not
shown by the evidence. See Jacobs v. State, 230 S.W.3d 225, 231–32 (Tex. App.—
Houston [14th Dist.] 2006, no pet.); Baker v. State, 986 S.W.2d 271, 275 (Tex.
App.—Texarkana 1998, pet. ref’d).          Appellant’s reliance on these cases is
misplaced. In those cases, the only evidence of “theft” was a failure to perform as
contracted as outlined in Section 31.01(1)(E) of the Penal Code. Here, there is
substantially more evidence of deception than there is of a failure to perform under
a contract. Specifically, this case involves Appellant creating a false impression of
law or fact concerning the title to property. We recognized in Lopez v. State that
                                          6
evidence of partial performance under a contract is not relevant to a charge that an
actor induced the property owner’s consent to a contract by creating a false
impression of law or fact. 316 S.W.3d 669, 677 (Tex. App.—Eastland 2010, no
pet.). The Court of Criminal Appeals has reached the same conclusion, holding that
“[t]he fact that partial or even substantial work has been done on a contract will not
invariably negate either the intent to deprive or the deception necessary to establish
the unlawfulness of the initial appropriation.” Taylor v. State, 450 S.W.3d 528, 537
(Tex. Crim. App. 2014). Accordingly, partial performance under the contract has
no bearing on our determination of Appellant’s intent.
      Appellant additionally asserts that he could not be criminally culpable for his
conduct because he had no intent to deprive the Bradleys of their money at the time
he accepted the money from them. He asserts that he did not have an intention to
wrongfully take their money at that time because the mortgage was current at the
time of the conveyance. Appellant is correct that the evidence must show that he
intended to deprive the Bradleys of the property at the time the property was taken.
Wirth, 361 S.W.3d at 697. However, we disagree with Appellant’s assessment of
the evidence. In reviewing the sufficiency of the evidence, we look at events
occurring before, during, and after the commission of the offense. Id. The Bradleys
testified that Appellant misrepresented the nature of the title to the property during
the negotiations, which preceded their payment of the down payment to him. This
evidence shows an intent to deprive on the part of Appellant at the time that the
Bradleys conveyed the money to him. Moreover, the fact that the mortgage might
have been current at the time of the conveyance has no bearing on the fact that
Appellant represented that there was no mortgage on the property.
      Appellant asserts that this dispute should have been resolved as a civil matter.
He points out that, throughout the contract, the Bradleys are referred to as “tenants,”
not “buyers.” He also points out that the monthly payments are considered “rent” in
                                          7
the contract and not “principal” or “purchase” payments. He asserts that the contract
wording shows that the Bradleys’ legal position at the time of the agreement was
more akin to renters than purchasers. Therefore, he asserts, he did not have an
obligation to disclose the mortgage at the time of the agreement. See PENAL
§ 31.01(1)(D). Finally, Appellant asserts that any purported oral representations
made to the Bradleys about a mortgage on the house cannot be used against him
because the contract purportedly contained a merger clause wherein it provided: “No
statement or promise by Owner, its agents, as to tenancy, repairs, amount of rent to
be paid, or other terms and conditions shall be binding unless it is put in writing and
made a specific part of this agreement.
      We disagree with Appellant’s characterization of the transaction as a rental
agreement based upon the parties’ written contract that they prepared themselves
without legal representation. It appears that Appellant used some type of rental
agreement as a starting point for drafting the contract. However, the title of the
contract specifies that it was a “Rent to own contract,” and there is no dispute that
that the Bradleys were purchasing the property from Appellant and his wife.
Furthermore, Appellant has cited no authority that a merger clause precludes his
criminal conviction for theft by deception. We note that in the civil context, a merger
clause will not prevent a contract from being avoided “for antecedent fraud or fraud
in its inducement.” Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341
S.W.3d 323, 331 (Tex. 2011) (quoting Dallas Farm Mach. Co. v. Reaves, 307
S.W.2d 233, 239 (Tex. 1957)).
      The evidence adduced at trial showed Appellant’s signature on a thirty-year
mortgage taken out on the property in 2003. Negotiations between Appellant and
the Bradleys began in 2011. The jury heard testimony that Appellant told the
Bradleys that there was no mortgage on the property and that he owned the house
outright. The Bradleys then negotiated a price for the house and paid a $6,000 down
                                           8
payment to Appellant, which he put in his sock upon receiving it from the Bradleys.
Brian Bradley testified that, under the terms of the contract, he and his wife would
purportedly own the property outright after making payments for nine years. The
Bradleys then received a notice to vacate the house only a few months after moving
in. Brian testified that only then did Appellant and his wife acknowledge that there
was a mortgage on the property and that Appellant and his wife had stopped making
payments soon after entering into the contract with the Bradleys. A rational jury
could have concluded that Appellant represented to the Bradleys that there was no
mortgage on the house, that Appellant knew this was not true, and that this likely
affected the Bradleys’ decision to sign the contract and pay the $6,000 down
payment. Accordingly, the evidence is sufficient to support the jury’s verdict on the
offense of theft by deception in an amount greater than $1,500 but less than $20,000.
We overrule Appellant’s sole issue.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


May 6, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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