                                      NUMBER 13-05-364-CR

                                    COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


H.A. REED D/B/A REED
CONSTRUCTION,                                                                              Appellant,

                                                        v.

THE STATE OF TEXAS,                                                                        Appellee.


On appeal from the 36th District Court of San Patricio County, Texas.


                                MEMORANDUM OPINION

          Before Chief Justice Valdez and Justices Yañez and Vela
                  Memorandum Opinion by Justice Yañez

      A jury convicted appellant, H. A. Reed d/b/a Reed Construction, of felony theft.1

The trial court assessed punishment at ten years’ imprisonment, suspended the sentence,




      1
          See T EX . P EN AL C OD E A N N . § 31.03(a), (b), (e)(5) (Vernon Supp. 2007).
and placed appellant on community supervision for a period of ten years.2 By three issues,

appellant contends (1) the evidence is legally and factually insufficient to support his

conviction and (2) he was denied effective assistance of counsel. We affirm.

                                               Background

       In May 2003, appellant, a general contractor, entered into a “cost plus” construction

contract with the complainants, John and Beverly McGee, to build the McGees a “dream

home” on their property.3 Over the next five months, appellant submitted five “draw

requests” for construction expenses, paid by Mr. McGee, in separate checks totaling

$123,700.00. Mr. McGee testified that he fired appellant in December when he learned

that appellant’s $2,500.00 check to Manuel Gonzalez, the lead mason subcontractor, had

“bounced.” Mr. McGee asked for an accounting. According to McGee, of the $123,700.00

paid to appellant, the materials and labor expended on the construction amounted to

$47,389.55, leaving $76,310.45 in unaccounted funds expended by the McGees. The

McGees contacted the district attorney’s office. Following a jury trial, appellant was found

guilty of theft of more than $20,000.00, but less than $100,000.00.

                           Standards of Review and Applicable Law

       Evidence is legally insufficient if, when viewed in a light most favorable to the

verdict, a rational jury could not have found each element of the offense beyond a




       2
          The trial court also im posed a $10,000 fine and ordered appellant to pay restitution to the
com plainants in the am ount of $76,310.45.

       3
           In 1995, the McGees won alm ost five m illion dollars in the Texas State Lottery.

                                                       2
reasonable doubt.4 The jury is the exclusive judge of the credibility of witnesses and of the

weight to be given testimony, and it is also the exclusive province of the jury to reconcile

conflicts in the evidence.5 Thus, when performing a legal-sufficiency review, we may not

re-evaluate the weight and credibility of the evidence and substitute our judgment for that

of the fact finder.6 We must resolve any inconsistencies in the testimony in favor of the

verdict.7 The legal sufficiency of the evidence is measured against the elements of the

offense as defined by a hypothetically correct jury charge for the case.8

        When conducting a factual-sufficiency review, we view all of the evidence in a

neutral light.9 We may set the verdict aside if (1) the evidence is so weak that the verdict

is clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and

preponderance of the evidence.10               However, while we may disagree with the jury's

conclusions, we must exercise appropriate deference to avoid substituting our judgment

for that of the jury, particularly in matters of credibility.11 Finally, we must discuss the


        4
         Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jones v. State, 944 S.W .2d 642, 647 (Tex. Crim .
App. 1996).

        5
            Jones, 944 S.W .2d at 647.

        6
            Dewberry v. State, 4 S.W .3d 735, 740 (Tex. Crim . App. 1999).

        7
            Curry v. State, 30 S.W .3d 394, 406 (Tex. Crim . App. 2000).

        8
            Malik v. State, 953 S.W .2d 234, 240 (Tex. Crim . App. 1997).

        9
         See Cain v. State, 958 S.W .2d 404, 408 (Tex. Crim . App. 1997); Clewis v. State, 922 S.W .2d 126,
134 (Tex. Crim . App. 1996).

        10
           W atson v. State, 204 S.W .3d 404, 414-15 (Tex. Crim . App. 2006) (citing Johnson v. State, 23
S.W .3d 1, 11 (Tex. Crim . App. 2000)).

        11
           Drichas v. State, 175 S.W .3d 795, 799 (Tex. Crim . App. 2005); see W atson, 204 S.W .3d at 414
(stating that a court should not reverse a verdict it disagrees with, unless it represents a m anifest injustice

                                                       3
evidence that, according to appellant, most undermines the jury's verdict.12

        A person commits theft if the person unlawfully appropriates property with the intent

to deprive the owner of the property.13 Appropriation is unlawful if it is without the owner's

effective consent.14 An owner's consent is not effective if it is induced by deception.15

Among other meanings, “deception” includes:

        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.16

        To constitute theft, the defendant must intend to deprive the owner of the property

at the time the property is taken.17 The intent to deprive is determined from the words and

acts of the accused.18 “In determining whether the evidence is legally sufficient to establish

whether appellant had criminal intent to commit theft, we examine the evidence in the

record in a light most favorable to the jury's verdict, which includes evidence pertaining to

whether he personally gained from what was allegedly taken, whether he partially




even though supported by legally sufficient evidence).

        12
             Sims v. State, 99 S.W .3d 600, 603 (Tex. Crim . App. 2003).

        13
             See T EX . P EN AL C OD E A N N . § 31.03(a) (Vernon Supp. 2007).

        14
             See id. at § 31.03(b)(1).

        15
             See id. at § 31.01(3)(A).

        16
             See id. at § 31.01(1)(E).

        17
          W ilson v. State, 663 S.W . 2d 834, 836-37 (Tex. Crim . App. 1984 (en banc); Peterson v. State, 645
S.W .2d 807, 811 (Tex. Crim . App. 1983) (op. on reh'g).

        18
             King v. State, 174 S.W .3d 796, 810 (Tex. App.–Corpus Christi 2005, pet. ref’d).

                                                          4
performed on any of the representations that were made to the complainants, whether he

used deception to obtain property, and whether any inferences can properly be drawn from

the combined force of the circumstantial evidence.”19

        “The critical distinction between conduct that is criminal versus civil in nature is

whether the record shows deception and not merely a failure to perform.”20 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.21 “If no more than intent

and appropriation is shown in a contract claim, nothing illegal is apparent, because under

the terms of [a contract] individuals typically have the right to ‘deprive the owner of

property,’ albeit in return for consideration.”22 In a contract claim, the State must prove the

defendant did not perform the contract and knew he was not entitled to the money, not

merely that there is a dispute about the amount rightfully owed.23 The mere fact that one

fails to return funds paid in advance after failing to perform a contract does not constitute

theft.24 If money was voluntarily given to the appellant pursuant to a contractual agreement

and there is insufficient evidence in the record to show the money was obtained by




        19
             Christensen v. State, 240 S.W .3d 25, 32 (Tex. App.–Houston [1st Dist.] 2007, pet. ref’d).

        20
             Id. at 34.

        21
           Jacobs v. State, 230 S.W .3d 225, 229 (Tex. App.–Houston [14th Dist.] 2006, no pet.) (citing Baker
v. State, 986 S.W .2d 271, 274 (Tex. App.–Texarkana 1998, pet. ref'd)).

        22
             Id. (quoting Baker, 986 S.W .2d at 274).

        23
             Id.

        24
             Id.

                                                        5
deception, the conviction cannot stand.25 In sum, the State must show a rational factfinder

could have found appellant had no intention of fulfilling his obligation under the agreement,

and his promise to perform was “merely a ruse to accomplish theft by deception.”26

                                                    Analysis

        By his first issue, appellant contends the evidence is legally insufficient to establish

(1) an unlawful appropriation, (2) a lack of effective consent by reason of deception, and

(3) the requisite “intent to deprive.” Appellant argues there was no unlawful appropriation

by means of deception because (1) McGee voluntarily paid funds to him pursuant to the

terms of the construction contract, and (2) McGee’s voluntary payments to subcontractors

were unnecessary because no liens had been filed against the property by subcontractors.

Appellant also argues there is no evidence of the “intent to deprive” element because

McGee admitted that he fired appellant.

        As noted above, a claim of theft made in connection with a contract requires proof

of more than “intent to deprive” the owner of property and subsequent appropriation

because under a contract, an individual typically deprives the owner of property in

exchange for consideration.27 Thus, our inquiry must focus on whether there is sufficient

evidence to show that the money McGee paid appellant pursuant to the contract was

obtained by deception.28


        25
           Id. at 229-30 (citing Phillips v. State, 640 S.W .2d 293, 294 (Tex. Crim . App. 1982); Baker, 986
S.W .2d at 274).

        26
             Id. at 230 (citing King v. State, 17 S.W .3d 7, 15 (Tex. App.–Houston [14th Dist.] 2000, pet. ref'd)).

        27
             Id. at 229.

        28
             See id. at 229-30.

                                                         6
      At trial, Mr. McGee testified that appellant said he and Carole Wilkinson were

partners in “Wilkinson Reed Development.” Wilkinson is a trust officer at the local Stewart

Title office. According to McGee, appellant explained that the construction funds would be

deposited into an account with Stewart Title, and that invoices would be paid by Wilkinson

out of the escrow funds. McGee testified that he believed he had an escrow account at

Stewart Title, an arrangement that “made it legitimate.” He also stated that if he had

known that the funds would not be deposited into an escrow account, he would not have

done business with appellant. According to McGee, another reason for his belief that

appellant and Wilkinson were partners was appellant’s office sign, which read “Wilkinson

Reed Development.”

      McGee testified that he paid appellant five draws totaling $123,700.00 between May

and December 2003. McGee later learned that the first check to appellant had been

deposited into a “Reed Construction Company” account; the four subsequent checks were

simply cashed by appellant. After McGee fired appellant in December, he learned that

many of the vendors from whom appellant had presented invoices had not been paid;

McGee paid the outstanding bills to vendors from his savings, which “cleaned out [his]

savings account.” McGee testified that $18,000.00 out of the second and third draw

requests was in payment for windows. After appellant was fired, McGee learned that the

windows had been ordered, but not paid for. When the windows arrived at the glass

company, McGee paid the company directly for the windows. McGee testified that two

draw requests, one for $15,000.00 and a second for $5,500.00, were designated for

payment to Bracht Lumber Company for cinder block. McGee later learned that despite

the draws, two outstanding invoices from Bracht Lumber, dating back to November 2003,

                                            7
for a total of $8,118.84, remained unpaid. Similarly, McGee testified that two draws

totaling $15,000.00 were for “Spancrete,” a concrete product to be used in the roof. Ronal

Olfers, an employee of the concrete manufacturer, testified that appellant had accepted

the bid proposal for the job, but the product had neither been manufactured nor paid for.

       McGee testified that he fired appellant in December because appellant gave Manuel

Gonzales, the lead mason in the masonry crew, a $2,500.00 check that “bounced.” McGee

learned that although he had paid appellant $14,000.00 out of the third and fourth draws

for mason labor, appellant had only paid out $6,000.00. When McGee called appellant

about the check, appellant said he would make the check good “when he [got] around to

it.” McGee said that was “not acceptable,” and paid the masonry crew $2,500.00 out of his

checking account. McGee testified that three days after he gave appellant a draw-request

check, appellant came by the job site driving a new Harley Davidson motorcycle.

       On cross-examination, McGee admitted that the contract does not contain any

provision regarding an escrow account, but stated he “was just going by what [appellant]

told [him].”

       Beverly McGee testified that appellant explained that the construction funds (checks

from the McGees) would be deposited into an escrow account with Stewart Title, under the

control of Wilkinson, his partner. As invoices were presented to Wilkinson, she would pay

them from the account. Ms. McGee testified that having the money in an escrow account

“seemed like a safe thing to do,” and that had she known the funds were going into a

private account, she would not have agreed to the contract because such a practice did

not make “good business sense.”

       Carole Wilkinson testified that she is an escrow officer at Stewart Title. She testified

                                              8
that she and appellant had been partners, but that she had “phased out” of the business

when she became an escrow officer at Stewart Title.29 She testified that her office

researches title on contracts between builders and owners, but does not set up escrow

accounts for purposes of home construction. She testified she had never accepted monies

from appellant for an escrow account for the McGees.

        The State presented testimony from several other witnesses, including Gonzales,

the masonry subcontractor, and the bookkeeper for the glass company. The record

includes a photograph of the job site, depicting several partially-constructed block walls.

Appellant did not testify and did not present any witnesses.

        We note that if a contract is partially or substantially performed, then intent to

commit theft through deception is not shown by the evidence.30 Here, appellant had

performed some work on the project. However, the evidence before us shows appellant

deceived the McGees by falsely telling them that the construction funds would be

deposited in an escrow account. The McGees testified had they known that the funds

would not be placed in an escrow account, they would not have agreed to the contract.

The evidence also shows that appellant told McGee that the draws were designated for

particular construction costs, but the funds were not used to pay for the designated

expenses. Specifically, appellant took funds and represented that they were needed to

pay for windows, cinder block, and “spancrete”; the funds, however, were not used for

those purposes. Instead, the first check was deposited in appellant’s business account,


        29
             W ilkinson testified that as partners, appellant built houses and she sold them .

        30
           Jacobs, 230 S.W .3d at 231-32 (citing Baker v. State, 986 S.W .2d 271, 275 (Tex. App.–Texarkana
1998, pet. ref’d)).

                                                        9
and four subsequent checks were cashed. We conclude that the evidence shows that the

proceeds of the checks were not used for the purposes represented by appellant. Viewing

the evidence in the light most favorable to the verdict, we conclude that a rational jury could

have inferred that appellant took the funds without the intent to perform the contract and

with the intent to deprive the McGees of the funds. We hold the evidence is legally

sufficient to support appellant’s conviction and overrule his first issue.

       By his second issue, appellant contends the evidence is factually insufficient.

Appellant makes the same arguments in connection with his factual sufficiency complaint.

Specifically, appellant argues: (1) there was no unlawful appropriation by deception

because the contract did not provide for an escrow account; (2) McGee’s payments to

subcontractors were voluntary and unnecessary because no liens were filed against the

property; and (3) there was no proof of the “intent to deprive” element because appellant

was fired and therefore could not complete the project.

       We note that although appellant cross-examined the State’s witnesses, he

presented no evidence during the trial, and there was no conflicting evidence for the jury

to resolve. We have already addressed appellant’s arguments in connection with his legal

sufficiency challenge. We further note, however, that we are unpersuaded by appellant’s

argument that the contract did not contain any reference to an escrow account because

the McGees testified that appellant told them he would set up an escrow account at

Stewart Title. With respect to appellant’s argument that the McGees’ payments to the

subcontractors were unnecessary because no liens had been filed, we note that even if the

McGees had not paid the subcontractors, the State presented evidence that appellant

represented that the purpose of the draws was to pay subcontractors, but did not use the

                                              10
funds for that purpose. As to appellant’s argument that he could not perform the contract

because he was fired, we have found that the State presented evidence from which a

rational juror could infer that appellant took the funds without the intent to perform the

contract and with the intent to deprive the McGees of the funds.

       We have conducted a neutral review of the evidence and find that it is factually

sufficient to support the jury’s verdict in this case. We overrule appellant’s second issue.

                                       Ineffective Assistance

       Strickland v. Washington,31 sets forth the standard of review for effectiveness of

counsel.32 Strickland requires a two-part inquiry.33 The defendant must first show that

counsel's performance was deficient, in that it fell below an objective standard of

reasonableness.34 Second, the defendant must further prove there is a reasonable

probability that but for counsel's deficient performance, the result of the proceeding would

have been different.35 A reasonable probability is a probability sufficient to undermine

confidence in the outcome.36

       The determination regarding whether a defendant received effective assistance of




       31
            Strickland v. W ashington, 466 U.S. 668, 687 (1984).

       32
            See Thompson v. State, 9 S.W .3d 808, 812 (Tex. Crim . App. 1999).

       33
            Id.

       34
            Id.

       35
            Id.

       36
            Id.

                                                    11
counsel must be made according to the facts of each case.37 An appellate court looks to

the totality of the representation and the particular circumstances of the case in evaluating

counsel's effectiveness.38

       The appellant bears the burden of proving by a preponderance of the evidence that

counsel was ineffective.39 There is a strong presumption that counsel's conduct fell within

the wide range of reasonable professional assistance.40 To defeat the presumption of

reasonable professional assistance, “any allegation of ineffectiveness must be firmly

founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness.”41 Generally, the record on direct appeal will be insufficient to show that

counsel’s representation was so deficient as to meet the first part of the Strickland

standard.42

       By his third issue, appellant contends he was denied effective assistance of counsel

because his trial attorneys did not interview any of the State’s witnesses. At the hearing

on appellant’s motion for new trial, appellant testified he did not think his attorneys

prepared properly for trial because they did not know what the State’s witnesses were

going to say.



       37
            Id.

       38
            Id.

       39
            Id. at 813.

       40
            Id.

       41
            McFarland v. State, 928 S.W .2d 482, 500 (Tex. Crim . App. 1996).

       42
            Mitchell v. State, 68 S.W .3d 640, 642 (Tex. Crim . App. 2002).

                                                      12
       Appellant’s counsel testified that he discussed with appellant whether appellant

should testify at his trial; although appellant made the decision, his counsel recommended

that he not testify for several reasons, including that appellant’s story “was not real

consistent.” With regard to the State’s witnesses, appellant’s counsel testified that he and

his co-counsel did talk with some witnesses, but did not contact others because they “had

a pretty good idea in terms of what their testimony was going to be.” Counsel stated that

he spoke with three or four character witnesses about appellant’s character. Counsel

testified that they discussed calling appellant’s civil trial lawyer as a fact witness to testify

that the theft allegation was a civil, not a criminal matter; they did not do so, however,

because such testimony could have “opened the door” to damaging testimony regarding

appellant’s business transactions with other customers. Appellant’s counsel was asked

whether appellant “[gave] you any witnesses as to the [theft allegation].” Counsel stated

that appellant had not.

       We conclude that appellant has met neither prong of Strickland.43 We overrule

appellant’s third issue. We affirm the trial court’s judgment.




                                              LINDA REYNA YAÑEZ,
                                              Justice


Do not publish. TEX . R. APP. P. 47.2(b).

Memorandum opinion delivered and filed
this the 27th day of March, 2008.


       43
            See Thompson, 9 S.W .3d at 812.

                                               13
