                                                                                   PD-1340-14
                                                                  COURT OF CRIMINAL APPEALS
                                                                                   AUSTIN, TEXAS
March 3, 2015                 No. PD-1340-14                    Transmitted 3/3/2015 10:16:15 AM
                                                                  Accepted 3/3/2015 10:27:24 AM
                                                                                    ABEL ACOSTA
                                       In the                                               CLERK
                             Court of Criminal Appeals
                             
                               No. 14-13-00375-CR
      In the Court of Appeals for the Fourteenth District of Texas at Houston
                             
                                   No. 1253665
                          th
                In the 174 District Court of Harris County, Texas
                             
                       KEVIN LAVELLE KENT
                                    Appellant
                                       V.
                        THE STATE OF TEXAS
                                Appellee
                            
      STATE’S BRIEF ON DISCRETIONARY REVIEW
                            

                                                    DEVON ANDERSON
                                                    District Attorney
                                                    Harris County, Texas

                                                    ERIC KUGLER
                                                    Assistant District Attorney
                                                    Harris County, Texas
                                                    TBC No. 796910
                                                    kugler_eric@dao.hctx.net

                                                    KAYLINN WILLIFORD
                                                    PAULA HARTMAN
                                                    Assistant District Attorneys
                                                    Harris County, Texas

                                                    1201 Franklin, Suite 600
                                                    Houston, Texas 77002
                                                    Tel.: 713-755-5826
                                                    FAX: 713-755-5809

                                                    Counsel for Appellee

                       ORAL ARGUMENT PERMITTED
               STATEMENT REGARDING ORAL ARGUMENT

This Court has permitted oral argument in this case.


                    IDENTIFICATION OF THE PARTIES

Counsel for the State:

      Devon Anderson  District Attorney of Harris County

      Eric Kugler  Assistant District Attorney on appeal

      Kaylinn Williford; Paula Hartman  Assistant District Attorneys at trial

Appellant or criminal defendant:

      Kevin L. Kent

Counsel for Appellant:

      James Pons  Counsel on appeal

      James Brooks; John Still  Counsel at trial

Trial Judge:

      Hon. Ruben Guerrero  Presiding Judge
                                          TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ................................................. 1

IDENTIFICATION OF THE PARTIES .................................................................... 1

INDEX OF AUTHORITIES ...................................................................................... 3

STATEMENT OF THE CASE................................................................................... 5

ISSUES PRESENTED ............................................................................................... 5

  A. The court of appeals should not have reversed the trial court’s decision to
  reject the appellant’s proposed application paragraph because the paragraph was
  not authorized by the indictment and was an incorrect statement of the law. .......5
  B. The court of appeals erred in holding that jurors must unanimously agree
  beyond a reasonable doubt on each underlying transaction used to comprise an
  aggregate theft charge. ...........................................................................................5
  C. The court of appeals erred in finding that the appellant was harmed by any
  unanimity error in the jury charge because his defense was not predicated on
  isolating one transaction from another. ..................................................................5
STATEMENT OF FACTS ......................................................................................... 6

SUMMARY OF THE ARGUMENT ....................................................................... 14

ARGUMENT ........................................................................................................... 14

PRAYER .................................................................................................................. 29

CERTIFICATE OF SERVICE AND COMPLIANCE............................................. 30




                                                             2
                                  INDEX OF AUTHORITIES


CASES

Almanza v. State,
  686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g) ......................................26

Burrell v. State,
  526 S.W.2d 799 (Tex. Crim. App. 1975)..............................................................19

Byrd v. State,
  336 S.W.3d 242 (Tex. Crim. App. 2011) ....................................................... 23, 26

Cada v. State,
  334 S.W.3d 766 (Tex. Crim. App. 2011) ....................................................... 17, 19

Curry v. State,
  30 S.W.3d 394 (Tex. Crim. App. 2000) ................................................................19

Francis v. State,
  36 S.W.3d 121 (Tex. Crim. App. 2000) ................................................................22

Garza v. State,
 344 S.W.3d 409 (Tex. Crim. App. 2011) ....................................................... 23, 24

Harrell v. State,
 834 S.W.2d 540 (Tex. App.—
 Houston [14th Dist.] 1992, pet. ref’d) ...................................................................17

Jourdan v. State,
  428 S.W.3d 86 (Tex. Crim. App. 2014) ................................................................19

Kent v. State,
  447 S.W.3d 408 (Tex. App.—
  Houston [14th Dist.] 2014, pet. granted)...................................................... passim

Kitchens v. State,
  823 S.W.2d 256 (Tex. Crim. App. 1991) ..............................................................17

Lehman v. State,
  792 S.W.2d 82 (Tex. Crim. App. 1990) ................................................... 17, 18, 23


                                                     3
Murchison v. State,
 93 S.W.3d 239 (Tex. App.—
 Houston [14th Dist.] 2002, pet. ref’d) ............................................................ 17, 18

Pizzo v. State,
  235 S.W.3d 711 (Tex. Crim. App. 2007) ..............................................................19

Richardson v. United States,
  526 U.S. 813 (1999) .............................................................................................20

Schad v. Arizona,
  501 U.S. 624 (1991) ................................................................................ 22, 23, 24

Smith v. State,
  298 S.W. 286 (Tex. Crim. App. 1927) ..................................................................19

State v. Weaver,
  982 S.W.2d 892 (Tex. Crim. App. 1998)..............................................................25

STATUTES

21 U.S.C. § 848(c) ...................................................................................................20

TEX. PENAL CODE § 21.02 (West 2010) ...................................................................21

TEX. PENAL CODE § 25.11 (West 2010) ...................................................................21

TEX. PENAL CODE § 31.03 (West 2010) ...................................................................20

TEX. PENAL CODE § 31.09 (West 2010) ...................................................... 16, 20, 21

OTHER AUTHORITIES

Act of May 17, 2007, 80th Leg., ch. 593, § 1.17, 2007 Tex. Sess. Law Serv. Ch.
 593 ........................................................................................................................21

Act of May 23, 1973, 63rd Leg., ch. 399, § 1, 1973 Tex. Sess. Law Serv. Ch. 39921

Act of May 31, 2009, 81st Leg., ch. 665, § 1, 2009 Tex. Sess. Law Serv. Ch. 665 21




                                                              4
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:


                         STATEMENT OF THE CASE

      The appellant was charged with the aggregate theft of money from two

families over a five-year period (CR – 13). The jury found the appellant guilty,

and the trial court thereafter assessed punishment at 60 years in prison (CR – 615).

The court of appeals reversed the conviction and held that the jury was required to

unanimously agree on each individual transaction that comprised the aggregate

theft charge. Kent v. State, 447 S.W.3d 408 (Tex. App.—Houston [14th Dist.]

2014, pet. granted). This Court granted review.


                             ISSUES PRESENTED

      A.    The court of appeals should not have reversed the trial
            court’s decision to reject the appellant’s proposed
            application paragraph because the paragraph was not
            authorized by the indictment and was an incorrect
            statement of the law.

      B.    The court of appeals erred in holding that jurors must
            unanimously agree beyond a reasonable doubt on each
            underlying transaction used to comprise an aggregate theft
            charge.

      C.    The court of appeals erred in finding that the appellant was
            harmed by any unanimity error in the jury charge because
            his defense was not predicated on isolating one transaction
            from another.




                                         5
                           STATEMENT OF FACTS

      In 1981, JoAnn and Larry Aniol opened River Gardens in New Braunfels,

Texas; it was a 70-acre, full-time treatment facility for “handicapped mentally

retarded adults” with more than 250 employees (RR. V – 15-16). Larry was the

clinical psychologist while JoAnn was the business manager (RR. V – 17).

      At a provider meeting in 2002, JoAnn told Marilyn Cochran that she was

very ill with a bone disease and wanted to sell River Gardens (RR. V – 17-18).

Cochran owned group homes in Texas and was interested in brokering commercial

deals for the transfers of such facilities (RR. V – 17). Cochran put the Aniols in

touch with a potential buyer named Barbara Allen (RR. VI – 38). Barbara and her

daughter Tamara Allen ran a similar facility in Brownsville and wanted to grow

their business (RR. VI – 35-37). The sales price for River Gardens was $19.5

million (RR. V – 21).

      Cochran also put both the Allens and the Aniols in touch with the appellant,

a purported mortgage broker, who was supposed to find financing for the Allens

(RR. V – 19-20, 42) (RR. VI – 39, 139-140). Cochran claimed that she had done

some deals with the appellant in the past, but that was not true (RR. V – 27). The

Aniols paid Cochran a brokerage fee of $150,000 (RR. V – 27-28). After that,

Cochran was no longer involved in the transaction (RR. V – 28-29) (RR. VII – 36).




                                        6
      The appellant did business under several names, one of which was the

Orlando Mortgage Company allegedly based in Pearland, Texas (RR. V – 25, 32-

36) (RR. VI – 40) (RR. VII – 11). Another of the appellant’s companies was called

Distinguished Properties; it was also located at the same address in Pearland and

was allegedly a real estate development investment company (RR. V – 26).

      The appellant’s website made it appear that Orlando Mortgage was a huge

company, but it was not (RR. VI – 40-41, 43). The appellant’s business address

was actually just a mailbox rental place (RR. V – 179) (RR. VI – 127-128). The

appellant had no physical office address and no employees at Orlando Mortgage

(RR. V – 179-182, 191).       “Darrell Ellis” was listed as the director of the

corporation, but there was no evidence of any real person by that name (RR. VII –

13-14).

      The appellant told the Allens that he could finance the entire transaction so

that they would not have to put up any money (RR. VI – 45, 48). He had one face-

to-face meeting with the Aniols, but the remainder of the business transaction was

handled by telephone and fax (RR. V – 21). And the appellant never met with the

Allens (RR. VI – 40).

      The appellant told the Allens and the Aniols that his father was well-

connected with Texas One Credit and was willing to help the appellant add such a

large sale to his résumé (RR. V – 42-43) (RR. VI – 48-49). But the appellant’s



                                        7
father was actually a flooring contractor, not a banker, and he was estranged from

his son at that time (RR. VI – 9-12, 25-26, 122). Furthermore, Texas One was not

available to issue a $50 million line of credit (RR. VI – 27-29).1 Nevertheless, the

appellant falsified communications with his father in order to trick the Aniols into

believing that his father and Texas One were supporting the transaction (RR. VI –

14, 16-17, 20) (RR. VII – 34, 85-86).

       In February 2003, the appellant allegedly approved a loan package of $25

million for the transaction, but he offered to drop the interest rate in exchange for a

cash payment of $200,000 (RR. V – 44) (RR. VI – 54-55). The Aniols offered to

front that money to the Allens in order to facilitate the deal; so they sent the money

to the Allens, who in turn forwarded it to the appellant (RR. VI – 56-57). The

appellant told the Aniols that the money was going into escrow (RR. V – 44-45).

The appellant had no permission to spend that money on himself; rather, the money

was to be returned to the Aniols after the transaction (RR. V – 46-47).

       Shortly thereafter, the appellant offered to drop the interest rate some more

for an additional payment of $100,000, and the Allens wired him that additional

money (RR. VI – 60-61, 71-72, 74). The appellant then requested $125,000 as a

“good faith” payment for “Ms. Carolyn and Ms. Sharon…the people at the bank



1
  In June 2010, Primeway Federal Credit Union absorbed Texas One Credit Union (RR. VI – 21-
22). The appellant did have an account at Texas One at one time, but it was eventually closed by
the credit union (RR. VI – 31).

                                               8
who controlled all the loans.” (RR. VI – 74-75). But the appellant did not work

with anyone with either of those names (RR. VI – 137).

      The appellant requested $369,528 as a “good faith deposit” from the Aniols

to encourage his father to cement his relationship with Texas One, and they wired

that money to Lawyer’s Title, which they believed to be an escrow account (RR. V

– 50-51). Shortly thereafter, JoAnn spoke with her brother, Tony Copp, who was

an investor (RR. V – 51).      After speaking with Copp, JoAnn requested the

$369,528 back, and it was returned in September 2003 (RR. V – 52).              The

appellant said, “See, I sent your money back, you can trust me. Let’s get this sale

complete. I have all the documents in place. And we’re almost there, we’re almost

there.” (RR. V – 52). The Aniols really wanted to sell the property due to JoAnn’s

illness, so they decided to press on with the appellant’s alleged deal despite their

misgivings (RR. V – 52-53).

      In October 2003, the appellant sent a fax to the Aniols that stated: “I spoke

with my dad last night. He said send your deposit to Orlando Mortgage account.

It’s a business account. Not personal. It will be safe there.” (RR. V – 56). The

Aniols sent $300,000 to what they thought was the bank account for the appellant’s

father so that he could be instrumental in closing the loan (RR. V – 57, 66-67).

And in February 2004, the Aniols sent another $150,000 to the appellant as part of

the transaction (RR. V – 80, 88).



                                         9
      The appellant showed alleged commitment letters to the Allens and the

Aniols; however, he blacked out the names of the banks in the letters (RR. V – 57-

60, 79) (RR. VI –65-66) (RR. VII – 31). The blacked-out name was “Cameron

Credit Union.” (RR. VII – 77-78, 98-99). But the appellant admitted that he had

changed that name himself (RR. VIII – 71). The appellant claimed that “Carolyn”

with the loan committee was working on the deal, but the Aniols never met anyone

named Carolyn who worked with the appellant (RR. V – 82-83). When the Aniols

asked to speak with Carolyn, the appellant said, “Oh, no, you’re not supposed to.

You’re the seller.” (RR. V – 83) (RR. VI – 76).

      The Aniols had already given the appellant $650,000 to facilitate the sale

when they decided to hire their own attorney to examine the transaction (RR. V –

93-94). The Aniols wrote a letter to the appellant and demanded that the money be

wired to their firm’s escrow account, but the appellant responded, “your money is

safe, it’s in an escrow account, don’t worry, you can trust me.” (RR. V – 95). The

appellant sent the Aniols an escrow agreement on August 3, 2004, which somewhat

allayed their concerns (RR. V – 100-101). The escrow agreement implied that

Texas One Credit Union was the lending institution (RR. V – 104-106).

      By that point, the Aniols had transferred to the appellant $200,000 to buy

down the interest rate, $300,000 for reserve debt service, and $150,000 for

additional debt service (RR. V – 111-112). The appellant was not allowed to spend



                                        10
any of that money on his personal items (RR. V – 88, 101, 109). And the Aniols

were supposed to receive that money back at the end of closing (RR. V – 88, 96,

162) (St. Ex. 283). In fact, the appellant guaranteed in writing that the Aniols

would receive back the $650,000 that they had advanced for the closing (RR. V –

106-107). But the deal never closed (RR. V – 107).

        In May 2005, the appellant asked for an additional $200,000 for debt service

and stated that his father would be sending $820,962 to support the loan (RR. V –

114-116). The Aniols then sent him that additional $200,000 (RR. V – 116). In

November 2005, the appellant volunteered to put up an additional $350,000 toward

the deal if the Aniols would give an additional $200,000 (RR. V – 119-120). When

she received that fax, JoAnn was so disgusted that she wanted to scream (RR. V –

120).

        On December 7, 2005, the Aniols called the appellant and told him that the

deal was over, that the sale would not go through, and that he was to return their

money (RR. V – 120-123). The appellant said, “okay, fine, I’ll go ahead and I’ll

call my bank and get that wiring sent over to you.” (RR. V – 123). But the Aniols

never received any of their money back (RR. V – 107, 123) (RR. VII – 50). The

appellant employed numerous delaying tactics and even offered to buy River

Gardens himself (RR. V – 124-126). The total loss to the Aniols was $975,000

(RR. V – 130) (RR. VI – 82) (RR. VII – 9).



                                         11
      When the Aniols dropped out of the transaction, the appellant contacted

Barbara Allen and told her that she should refocus on hotels (RR. VI – 81-82). He

told her that he had returned all of the money to the Aniols (RR. VI – 82-83). He

also told her that Orlando Mortgage could give her a $25 million line of credit, but

that she had to continue putting up money as “good faith debt service” (RR. VI –

81, 83, 86, 89). From March 2006 through March 2008, the Allens gave the

appellant an additional $337,000 (RR. VI – 83-84). But the appellant never closed

on a hotel deal (RR. VI – 90-92). And the appellant did not have permission to

spend that money on himself (RR. VI – 91, 108).

      Eventually, Barbara acted on her own and put $50,000 earnest money down

toward the purchase of a hotel in McAllen, Texas (RR. VI – 91-93). When she

informed the appellant of this, he became enraged (RR. VI – 94). The Allens had

had enough and sent a demand letter to the appellant in May 2008 for the return of

their $488,000 (RR. VI – 103-105) (RR. VII – 10) (St. Ex. 62). But the appellant

never returned any of the money (RR. VI – 108) (RR. VII – 50).

      The appellant did not have $19 million in assets to secure a loan sufficient to

purchase River Gardens (RR. VI – 162-163). Instead of depositing the money

received from the Allens and the Aniols into an escrow account, he deposited the

money into his personal accounts and spent the money on himself (RR. VII – 21-

22, 109-111, 115-126). He spent the stolen money on football paraphernalia,



                                         12
sports tickets and memorabilia, a Lincoln Navigator, a BMW, jewelry, furniture,

and other personal expenses (RR. VI – 141, 143-148, 152-161) (RR. VII – 40-42,

129-135) (RR. VIII – 118, 157-166).

      The appellant had numerous houses during the time of the scam, and he

spent most of his time at home (RR. VI – 127-136, 142-143). He would watch

television, play videogames, and shop on eBay (RR. VI – 142-143, 178-179). The

appellant was married, but he also had a girlfriend during this time (RR. VI – 178).

      The appellant testified in his own defense that he fabricated documents and

lied to both the Allens and the Aniols in order to keep his three partners secret (RR.

VIII – 65). But he could only remember the first name of one of his partners, and

that alleged person never testified (RR. VIII – 65-66). He also could not remember

the names of anyone he worked with at the alleged “backup” lending institution

(RR. VIII – 88-89).     Likewise, he did not know the whereabouts or contact

information for any of the alleged shareholders in his various corporations (RR.

VIII – 96-97, 102-105). He stole money from several other victims related to

refinancing scams before he was finally arrested by the authorities (RR. VIII –

108-117, 146-149, 189-190) (RR. IX – 9-27, 36-38). Nevertheless, the appellant

continued to solicit and lie to prospective clients well after he was arrested and up

until four months prior to the trial of the case (RR. VIII – 122-125).




                                          13
                       SUMMARY OF THE ARGUMENT

      The court of appeals held that the trial court erred in failing to give the

appellant’s requested jury instruction, which attempted to identify each separate

transaction in the aggregate theft and to require unanimity on each one. But the

requested instruction was incorrect because it was phrased in the conjunctive.

Furthermore, such unanimity was not required because aggregate theft is

considered to be one offense.      Finally, the appellant was not harmed, either

egregiously or otherwise, because his defense did not depend on separating and

defeating each individual transaction.


                                  ARGUMENT

      The appellant was charged with aggregate theft by “acquiring and otherwise

exercising control over property, namely, MONEY, owned by Barbara Allen and

Tamara Allen and Larry Aniol and Joann Aniol, hereafter styled the Complainant,

with the intent to deprive the Complainant of the property and the total value of the

property appropriated was over two hundred thousand dollars.” (CR – 13).        Any

individual instances of theft were not specifically pled in the indictment because it

was alleged that the appellant stole from the four complainants “pursuant to one

scheme and continuing course of conduct” from May 15, 2003 through March 13,

2008 (CR – 13).




                                         14
      At the end of the guilt stage of trial, the appellant objected to the application

paragraphs in the jury charge based on due process and due course of law “because

they do not require the jury to agree unanimously that the State prove beyond a

reasonable doubt each element of the offense.” (RR. IX – 50). Specifically, the

appellant requested that the trial court instruct the jury as follows:

             Now if you find from the evidence beyond a reasonable doubt
      that in Harris County, Texas, the defendant, Kevin Lavelle Kent,
      heretofore on or about May 15, 2003, and continuing through March
      13, 2008, did then and there unlawfully pursuant to one scheme or
      continuing course of conduct appropriate by acquiring or otherwise
      exercising control of the property, namely, money as
      follows….$200,000 from Larry and JoAnn Aniol deposited May 20,
      2003; $100,000 from Barbara Allen deposited June 24, 2003;
      $125,000…$74,000 deposited March 17 of ‘06 from Barbara Allen;
      $10,000 deposited September 8, 2006, from Barbara Allen; $50,000
      deposited October 20, ‘00 from Barbara Allen; $50,000 deposited
      November 30 of ‘06 from Barbara Allen; $15,000 deposited April 30,
      ‘07 from Barbara Allen; $15,000 deposited May 30, ‘07 from Barbara
      Allen; $30,000 deposited July 27 of ‘07 Barbara Allen; $13,000
      deposited September 28 of ‘07 from Barbara Allen; $40,000 deposited
      December 30, ‘07 from Barbara Allen; $10,000 deposited January 11,
      ‘08 from Barbara Allen; $5,000 deposited February 28, ‘08 from
      Barbara Allen; $25,000 deposited February 28th of ‘08 from Barbara
      Allen ‘May 14, ‘03 $200,000 from Larry and JoAnn Aniol – excuse
      me – October 29, ‘04, $300,000 from Larry and JoAnn Aniol;
      February 24, ‘04, $150,000 from Larry and JoAnn Aniol; and May 20,
      ‘05, $200,000 from Larry and JoAnn Aniol, with the intent to deprive
      Barbara Allen and Tamra Allen and Larry Aniol and JoAnn Aniol of
      the property total, and the total value of the property appropriated was
      over $200,000, then you will find the defendant guilty as charged in
      the indictment.

(RR. IX – 50-52). The prosecutor responded that the Penal Code allows the

aggregation of theft charges and that the jury was not required to agree on the


                                           15
specific transactions as long as they found that they added up to over $200,000

(RR. IX – 52).

      The trial court agreed with the prosecutor, and the jury was charged on

aggregate theft (RR. IX – 53) (CR – 607). Specifically, the jury was instructed that

“When amounts are obtained by theft pursuant to one scheme or continuing course

of conduct, whether from the same or several sources, the conduct may be

considered as one offense.” (CR – 606-607). The application paragraph tracked

the indictment, albeit with the victims listed in the disjunctive, without attempting

to further break down the appellant’s scheme or continuing course of conduct into

separate transactions (CR – 606-607). Finally, the jurors were instructed to certify

their verdict only after they had “unanimously agreed upon a verdict,” and they did

reach a unanimous verdict (CR – 610, 612).

      When amounts are “obtained in violation of this [theft] chapter pursuant to

one scheme or continuing course of conduct, whether from the same or several

sources, the conduct may be considered as one offense and the amounts aggregated

in determining the grade of the offense.” TEX. PENAL CODE § 31.09 (West 2010)

(emphasis added). Furthermore, where an indictment charges an individual with

the appropriation of property in an aggregate amount pursuant to one scheme or

continuous course of conduct, the State is not required to prove each individual

appropriation; rather, it must prove theft of property described in the indictment in



                                         16
an amount sufficient to satisfy the jurisdictional requirement of its pleading. See

Lehman v. State, 792 S.W.2d 82, 83-85 (Tex. Crim. App. 1990); Harrell v. State,

834 S.W.2d 540, 543 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d) (“It is

sufficient if the State shows enough of the property was stolen to meet the

aggregated value allegation.”).

      Under Texas law, the State may plead in the conjunctive and charge in the

disjunctive. See Cada v. State, 334 S.W.3d 766, 771 (Tex. Crim. App. 2011)

(citing Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991)).

Furthermore, because the individual transactions in an aggregate theft are

essentially alternative manners and means of committing the charged offense, the

trial court can properly instruct the jury in the disjunctive. See Murchison v. State,

93 S.W.3d 239, 257–58 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d)

(“Because it is proper to charge the jury in the disjunctive as to multiple manner

and means for the commission of a single offense, we conclude the jury charge in

this case did not violate appellants’ right to a unanimous verdict”); see also

Lehman, 792 S.W.2d at 84-85.

      The court of appeals in the present case distinguished this Court’s Lehman

opinion by stating that it “did not address whether the jurors would have to

unanimously agree from whom the defendant stole property.” Kent, 447 S.W.3d at

420. And it further distinguished its own Murchison opinion by stating that the



                                         17
court’s “suggestion that Lehman addressed the issue of jury unanimity was dictum

because it was not necessary to the ultimate disposition.” Id., 447 S.W.3d at 421.

But the decision of the trial court to reject the appellant’s proposed jury instruction

in this case flowed naturally from both Lehman and Murchison.

      The trial court properly refused to instruct the jurors as requested by the

appellant that they were required to acquit if they did not find beyond a reasonable

doubt that the appellant stole on “October 29, ‘04, $300,000 from Larry and JoAnn

Aniol; February 24, ‘04, $150,000 from Larry and JoAnn Aniol; and May 20, ‘05,

$200,000 from Larry and JoAnn Aniol.” (RR. IX – 51) (emphasis added). Lehman

explicitly does not require such proof because either the October 29 allegation or

the May 20 allegation would have been sufficient by themselves to reach the

statutory minimum; the State was not required to prove both. Lehman, 792 S.W.2d

at 84-85 (“the State should be allowed to plead all property which the evidence

may ultimately prove stolen without thereby being required to prove theft of any

larger quantum of property than the statute at issue requires.”). Furthermore, the

trial court followed the language of Murchison to the letter. See Murchison, 93

S.W.3d at 257–58 (“it is proper to charge the jury in the disjunctive as to multiple

manner and means for the commission of a single offense…”).

      Under the court of appeals ruling, prosecutors would no longer have control

over how to define the transactions that form the basis of an aggregate theft charge,



                                          18
and there would be an opportunity for substantial mischief during the charge

conference. The appellant’s proposed instruction would have inserted numerous

instances of conduct that were not pled in the indictment (RR. IX – 50-52). But

the “law as authorized by the indictment” consists of the statutory elements of the

offense as those elements are modified by the indictment, and the State is required

to prove that the defendant committed the alleged crime using that specific

statutory manner and means. See Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim.

App. 2000); Cada, 334 S.W.3d at 773–74. Prosecutors have been warned by this

Court for decades not to plead unnecessary details or be forced to prove them

beyond a reasonable doubt. Burrell v. State, 526 S.W.2d 799, 802 (Tex. Crim.

App. 1975) (citing Smith v. State, 298 S.W. 286 (Tex. Crim. App. 1927)). But

allowing defendants to insert additional elements that were not pled in the

indictment and after the evidence has been presented would eviscerate that rule.

Moreover, it would encourage defendants to creatively spin the facts into as many

separate transactions as possible in order to confuse and overburden the jurors.

      The court of appeals used the grammatical statutory analysis from Pizzo v.

State, 235 S.W.3d 711 (Tex. Crim. App. 2007), to dissect Section 31.09. Kent, 447

S.W.3d at 416. It then cited Jourdan v. State, 428 S.W.3d 86, 96 (Tex. Crim. App.

2014), for the proposition that the phrase “in violation of this chapter” from

Section 31.09 was an adverbial phrase that represented “discretely actionable units



                                         19
of prosecution.” Kent, 447 S.W.3d at 417. But this Court has explicitly stated that

“Ordinarily, we have not regarded adverbial phrases as ‘elemental’ for jury

unanimity purposes.” Jourdan, 428 S.W.3d at 96. And making the present case an

exception to that rule subverts the legislative intent in creating “one offense,”

especially when all of the property was taken under the same statutory section.

TEX. PENAL CODE § 31.09 (West 2010). As charged in the indictment, all of the

money obtained from the Allens and the Aniols was a result of theft under Section

31.03 (CR – 13). TEX. PENAL CODE § 31.03 (West 2010) (“A person commits an

offense if he unlawfully appropriates property with intent to deprive the owner of

property.”). Thus, there was no concern with joining separate statutory offenses

under one umbrella offense; they all fell under the same statute.

      The court of appeals cited Richardson v. United States, 526 U.S. 813, 817

(1999), for the proposition that the federal continuing criminal enterprise statute

treats each violation as a separate element requiring unanimity. Kent, 447 S.W.3d

at 418. The statute at issue in Richardson provided that a person commits an

offense if he “violates any provision of this subchapter or subchapter II of this

chapter,” and that “such violation is a part of a continuing series of violations of

this subchapter or subchapter II of this chapter.” See 21 U.S.C. § 848(c) (emphasis

added); Richardson, 526 U.S. at 815. But Section 31.09 does not use the term

“series of violations.”   Rather, it provides for an offense when amounts are



                                         20
obtained “in violation” of the theft chapter. TEX. PENAL CODE § 31.09 (West

2010). Thus, unlike Section 848(c), the text of Section 31.09 shows a Legislative

intent to treat the “scheme or continuing course of conduct” as the culpable

criminal behavior rather than each individual transaction used to prove the

existence of that scheme or course of conduct.

      The court of appeals stated that “the Legislature is well aware of how to

except certain elements of penal statutes from the unanimity requirement when the

elements require proof that a defendant committed multiple underlying criminal

offenses.” Kent, 447 S.W.3d at 419 (citing TEX. PENAL CODE §§ 21.02 and 25.11

(West 2010)). But Section 21.02, dealing with the continuous sexual abuse of a

child, was created in 2007. Act of May 17, 2007, 80th Leg., ch. 593, § 1.17, 2007

Tex. Sess. Law Serv. Ch. 593. And Section 25.11, dealing with continuous family

violence, was created in 2009. Act of May 31, 2009, 81st Leg., ch. 665, § 1, 2009

Tex. Sess. Law Serv. Ch. 665. Whereas the aggregate theft statute has been in

existence since at least 1973. Act of May 23, 1973, 63rd Leg., ch. 399, § 1, 1973

Tex. Sess. Law Serv. Ch. 399. Moreover, the nature of the recent continuous

offenses, which allow the combination of offenses across several chapters and only

under specific conditions, do not lend themselves to the same grammatical pattern

as Section 31.09, which is a blanket combination of all theft offenses. Compare

TEX. PENAL CODE §§ 21.02 and 25.11 (West 2010) with TEX. PENAL CODE § 31.03



                                        21
(West 2010). Thus, no clear Legislative intent may be inferred from the fact that

the 80th and 81st Legislatures did not follow the grammatical lead of the 63rd

Legislature, which passed the aggregate theft statute more than three decades

earlier.

       Interpreting Section 31.09 to make each individual transaction a separate

element of the offense is an unworkable and unsound public policy. Complex

thefts often involve numerous transactions. And in today’s world of electronic

finance, it can be very challenging to define where one transaction begins and

another ends. In the present case, the appellant refunded money to his victims at

times to build their confidence in him (RR. V – 52). But because money is

fungible, such transactions further complicate the determination of which

transactions were actually refunded.    Moreover, an aggregate theft involving

numerous amounts from numerous victims, such as a typical Ponzi scheme, would

create such a lengthy jury charge that jurors would be overwhelmed at the task of

sorting through it all.

       Unlike Francis v. State, 36 S.W.3d 121 (Tex. Crim. App. 2000) , the present

case did not involve multiple separate offenses. Rather, it was one ongoing offense

of aggregate theft committed pursuant to one scheme or continuing course of

conduct. And unlike Schad v. Arizona, 501 U.S. 624 (1991), it did not involve

alternative and incompatible methods of committing the same offense. Rather, the



                                        22
offense itself was composed of numerous consistent transactions which combined

to satisfy the statutory elements. Thus, the jury was properly instructed to be

unanimous with regard to that one offense (CR – 610). Furthermore, even if an

additional unanimity instruction were required, the appellant’s proposed instruction

was clearly wrong when it conjoined all of the separate transactions and required a

guilty verdict on each. Compare (RR. IX – 50-52) with Lehman, 792 S.W.2d at 84-

85. Therefore, the court of appeals erred in holding otherwise.

      The appellant claims that this Court has already decided the issue in this

case. (App’nt Resp. PDR 3-7). He cites Byrd v. State, 336 S.W.3d 242, 250-51

(Tex. Crim. App. 2011); Garza v. State, 344 S.W.3d 409 (Tex. Crim. App. 2011);

and Schad in support of this argument. But those cases are not helpful.

      In Byrd, the defendant was charged with shoplifting from the owner, “Mike

Morales,” but at trial, the State proved that Wal-Mart owned the property and

Morales was never mentioned. Byrd, 336 S.W.3d at 244. This Court held that the

evidence was insufficient to sustain the conviction because the State was required

to prove that the owner as shown by the evidence was the same as the owner

alleged in the charging instrument. Id., 336 S.W.3d at 252-253. This Court did,

however, recognize that the name of the owner was not a substantive element of

the offense of theft. Byrd, 336 S.W.3d at 251.




                                        23
      In Schad, the defendant was charged with first-degree murder under

alternate theories of premeditated murder and felony-murder based on robbery. On

appeal, Schad argued that his conviction under instructions that did not require the

jury to agree on one of the alternative theories of premeditated and felony murder

was unconstitutional. Schad, 501 U.S. at 630. A plurality of the Supreme Court

rejected Schad’s argument, holding that there is no constitutional requirement that

the jury agree on a single means of committing an offense. Id., 501 U.S. at 631.

The Court noted, however, that there is a point at which the alternative means of

committing a crime are so distinct as to constitute separate offenses. Id., 501 U.S.

at 633-34. Declining to create a bright-line test, the plurality determined that the

issue would be resolved by analyzing how offenses have been defined historically

and in wide practice. Id., 501 U.S. at 638. The Court observed that the state

legislature’s definition of the elements of the offense is usually dispositive. Id., 501

U.S. at 639.

      Finally, Garza was a software technician at a private school who over the

course of several years had been faking repairs on the students’ laptop computers

and then billing Hewlett Packard for those alleged repairs. Garza, 344 S.W.3d at

411. He was charged and found guilty of aggregated theft. On appeal, Garza

claimed that the evidence was insufficient because while the alleged victim,

Dennis Leahy, was an employee of Hewlett Packard at the time of the trial, he was



                                          24
not such an employee at the time of the theft and therefore could not be the owner

of the property. Id., 344 S.W.3d at 412. This Court rejected Garza’s argument,

holding that Leahy was a special owner and was competent to attest to the value of

the stolen property, even though he was not employed by Hewlett Packard at the

time of many of the alleged thefts. Id., 344 S.W.3d at 414.

      In an apparent non sequitur, and contrary to Lehman, the Garza court also

stated that “Each individual theft is an element of the aggregated theft described by

§ 31.09.” Id. That announcement only makes sense when considered in light of its

source in the citation, namely, State v. Weaver, 982 S.W.2d 892 (Tex. Crim. App.

1998). Weaver was accused of aggregate theft in Harris County and claimed that

the constituent thefts that occurred outside Harris County must be severed from the

charge. Weaver, 982 S.W.2d at 893. This Court disagreed, stating: “Section 31.09

clearly provides that several thefts ‘pursuant to one scheme or continuing course of

conduct’ may be aggregated and ‘considered as one offense.’ Each individual theft

and its elements aggregated under Section 31.09 is an element of the single offense

created by Section 31.09.” Id. (footnote omitted). That was the source of the

puzzling language in Lehman.       But the Weaver court went further than that,

holding that “Section 31.09 creates one offense for purposes of severance,

jurisdiction, punishment and limitations…[and] venue.” Id., 982 S.W.2d at 894.




                                         25
      Unlike Byrd, the present case was an aggregate theft committed pursuant to

one scheme or continuing course of conduct; furthermore, the names of the alleged

owners were repeatedly mentioned during the trial. And unlike Schad, it did not

involve alternative and incompatible methods of committing the same offense.

Rather, the offense itself was composed of numerous consistent transactions which

combined to satisfy the statutory elements. Finally, while the loose language in

Garza might at first blush appear to help the appellant, in context and in light of

Weaver, it is clear that aggregate theft is for all intents and purposes one offense.

And the jury was properly instructed to be unanimous with regard to that one

offense.

      Even if the jury charge contained objected-to error, the court of appeals erred

in finding that the appellant was harmed by the lack of a more detailed unanimity

instruction.   In assessing whether some harm resulted from the alleged error,

appellate courts must consider all relevant information revealed by the record,

including the entire jury charge, the state of the evidence, and the arguments of

counsel. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).

      The balance of the jury charge was correct, and the appellant did not

complain about any other charge error on appeal. The jury was instructed to certify

their verdict only after they “have unanimously agreed upon a verdict.” (CR –

610). And they reached a unanimous verdict that the appellant had unlawfully



                                         26
appropriated at least $200,000 pursuant to one scheme or continuing course of

conduct from one specific victim (CR – 612).

      The evidence of guilt was overwhelming.           The appellant admitted to

receiving well over $200,000 from the Allens and the Aniols and to spending it on

himself; he merely claimed that it was for “services rendered.” (RR. VIII – 64, 67-

70, 118-119, 143-145).       Furthermore, JoAnn, Barbara, and numerous fraud

investigators testified in detail concerning the numerous transactions involved in

the course of the theft (RR. V – 14) (RR. VI – 34) (RR. VII – 3, 62, 101). Finally,

the appellant’s evidence did not challenge the verity of the individual transactions

but rather the nature of the entire relationship. Thus, if the jury were to acquit the

appellant, it would not have been because they failed to find unanimity on the

individual transactions but rather because they believed the appellant’s claim to

being a legitimate mortgage broker.

      The argument of counsel, not surprisingly, followed the nature of the

evidence.   The defense argued that the appellant was “unorthodox” but was

“working hard” for the money (RR. IX – 64, 67). And the State responded

generally that the appellant was a “con man” and a liar (RR. IX – 82). Without

explicitly addressing the unanimity instruction, the defense did argue:

            Your job, what you’ve got to do is basically go through these
      20 transactions. And the State’s – they’re listed in the exhibits. And
      you’re going to have to go through each and every one and say: Did
      the State prove beyond a reasonable doubt that on May 20th, 2003,


                                         27
      when the Aniols sent Barbara Allen $200,000 and that that $200,000
      was sent to Kevin Kent, did the State prove beyond a reasonable
      doubt that a theft occurred on this occasion. You go through the
      charge. This is the law that applies. Go through this entire charge. Did
      the State prove beyond a reasonable doubt that this was a theft. Do it
      on this one, too. Every one of them.

(RR. IX – 66). But the defense itself never broke down each one and argued

specifically how the evidence was insufficient on each transaction. Rather, the

broad arguments made by the defense, such as “Kevin Kent never told anyone to

look at that website,” and “he gives an explanation for why this money is sent.

Same with the Allens, every time,” would have applied to all of the transactions

(RR. IX – 66, 73) (emphasis added). Likewise, the prosecutor told the jury, “when

you’re going over the charge, as we discussed in voir dire, you can believe that one

individual is out over $200,000, two individual victims are out over $200,000, or

three or four individuals, as long as you have one individual who is out over

$200,000.” (RR. IX – 60-61). But there was no meaningful argument that some of

the transactions were substantially different from the others, nor was there a need

for such an argument.

      The lower appellate court pointed to the following argument by the State as

evidence of harm: “And if for some reason you thought that document, Defense

Exhibit No. 2 [a settlement and release agreement signed by Allens and Aniols],

should wipe away any criminal responsibility regarding the $975,000 that the

Aniols loaned, Defense Exhibit 1 [a mutual general release signed by appellant and


                                        28
Allens] sure doesn’t. Because this document was executed by Barbara Allen, a loan

[sic] on December 8th, 2005.” Kent, 447 S.W.3d at 423 (emphasis added). But

such a brief reference in an argument that spanned forty-four pages of the

reporter’s record did not amount to a concession that the evidence was stronger

regarding the Allens than that regarding the Aniols (RR. IX – 56-100). Indeed, as

indicated by the emphasized portion above, that brief reference was meant more to

mock the appellant’s only two exhibits rather than to draw a distinction in the level

of proof between the victims. Therefore, the appellant was not harmed by any

error in the jury charge, and the court of appeals erred in holding to the contrary.


                                      PRAYER

      It is respectfully requested that the opinion of the court of appeals should be

reversed and the conviction affirmed.


                                                  DEVON ANDERSON
                                                  District Attorney
                                                  Harris County, Texas


                                                  /s/ Eric Kugler
                                                  ERIC KUGLER
                                                  Assistant District Attorney
                                                  Harris County, Texas
                                                  1201 Franklin, Suite 600
                                                  Houston, Texas 77002
                                                  (713) 755-5826
                                                  kugler_eric@dao.hctx.net
                                                  TBC No. 796910


                                          29
             CERTIFICATE OF SERVICE AND COMPLIANCE

      This is to certify that: (a) the word count function of the computer program
used to prepare this document reports that there are 6,964 words in it; and (b) a
copy of the foregoing instrument will be served by efile.txcourts.gov to:

      James Pons                         Lisa McMinn
      Attorney at Law                    State Prosecuting Attorney
      10900 N.W. Freeway, Suite 230      P.O. Box 13046
      Houston, Texas 77092               Austin, Texas 78711
      Jpons_78221@yahoo.com              Lisa.McMinn@SPA.texas.gov


                                               /s/ Eric Kugler
                                               ERIC KUGLER
                                               Assistant District Attorney
                                               Harris County, Texas
                                               1201 Franklin, Suite 600
                                               Houston, Texas 77002
                                               (713) 755-5826
                                               TBC No. 796910

Date: March 3, 2015




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