                         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,




        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.

                                                      2
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,
        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.
                                                   3
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:


        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.
                                                   4
         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

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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).

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                                     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

                                              7
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

                                              8
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.


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