                                         In The

                                  Court of Appeals

                     Ninth District of Texas at Beaumont

                                __________________

                                NO. 09-18-00311-CR
                                __________________

                         FRANK PATILLO IV, Appellant

                                           V.

                        THE STATE OF TEXAS, Appellee

__________________________________________________________________

             On Appeal from the County Court at Law No. 2
                        Jefferson County, Texas
                        Trial Cause No. 317074
__________________________________________________________________

                            MEMORANDUM OPINION

      Appellant Frank Patillo IV appeals his conviction for theft of service. Patillo

complains that his prosecution for non-payment of a debt violated the Texas

Constitution. Patillo also complains that there is insufficient evidence showing: (1)

the value of the stolen service; (2) that he received proper notice as required by the

statute; and (3) that after receiving notice, he failed to return the property. We reverse

the trial court’s judgment and render judgment of acquittal.
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                                  BACKGROUND

      Patillo was charged by information with the criminal offense of theft of

service. See Tex. Penal Code Ann. § 31.04 (West 2016). The information alleged

that on or about August 15, 2017, Patillo

      did then and there unlawfully with intent to avoid payment for service
      that Defendant knew was provided only for compensation, to-wit:
      provision of property consisting of furniture as per a rental purchase
      agreement, intentionally and knowingly secure the performance of said
      service from [B.T.] by agreeing to provide compensation and, after
      service was rendered, did fail to make full payment and, after receiving
      notice demanding return of the product, did fail to return the property,
      and the value of the service stolen by the Defendant was at least seven
      hundred fifty dollars but less than two thousand five hundred dollars[.]

      On July 17, 2017. Patillo entered into a rental-purchase agreement with

AcceptanceNow, which provided that Patillo would pay a monthly rental payment

to lease furniture. The agreement provided that Patillo was liable for the destruction,

loss, and damage to the property in excess of normal wear and tear. The rental-

purchase agreement shows that the cost of the furniture was $1443.75, and the

agreement provided that Patillo would become the owner of the furniture after

making monthly payments totaling $4708.75. The record shows that on September

15, 2017, AcceptanceNow sent Patillo a certified letter to an address in Beaumont,

Texas, giving Patillo notice that the agreement had expired on August 15, 2017, and

that he needed to contact AcceptanceNow within five days to arrange for the

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immediate pick-up or return of the merchandise, but the letter was returned

unclaimed. On October 9, 2017, AcceptanceNow sent a second certified letter to

Patillo that provided him with statutory notice pursuant to section 31.04 of the Texas

Penal Code, informing Patillo that the rental-purchase agreement had expired when

he failed to make a renewal payment and demanding the return of the property. The

record shows that the October letter was delivered to an agent in Plano, Texas, on

December 11, 2017, and the evidence did not demonstrate that the letter was sent by

registered or certified mail with a return receipt requested.

      During the trial, Sergeant Burt Moore of the Beaumont Police Department

testified that he investigated the theft of service case involving the month-to-month

lease agreement between Patillo and AcceptanceNow. Moore testified that Patillo

reported that he had lost the property in a flood due to Hurricane Harvey, and Moore

explained to Patillo that AcceptanceNow had sent out notice that it would forgive

the debt if it received proof that the property had been damaged due to the flood.

Moore explained that Patillo never contacted him or AcceptanceNow to provide

evidence showing that he had been affected by the flood.

      Brenda Thompson, the sales manager for AcceptanceNow, testified that

AcceptanceNow paid Bel Furniture $1443.75 for a two-piece living room set and a

dinette set, and AcceptanceNow leased the furniture to Patillo. Thompson testified

                                           3
that after Patillo defaulted on the first payment of the rental-purchase agreement,

AcceptanceNow made numerous attempts to contact Patillo and offered him an

opportunity to bring his account current, but Patillo failed to do so. Thompson

explained that Patillo paid a down payment of $143.50 toward the total cost of the

furniture and that the remaining value of the furniture was $1396.12.

      Thompson explained that AcceptanceNow has a loss damage waiver in every

agreement, which allows it to waive an account if the merchandise is damaged due

to a flood or hurricane. Thompson testified that Patillo had the loss damage waiver

on his account, and even though Patillo’s account was past due, AcceptanceNow

gave him the opportunity to provide photographic proof that the furniture was

destroyed during Hurricane Harvey, but he failed to do so. Thompson testified that

Patillo never offered to return the property, and a collection team unsuccessfully

attempted to recover the furniture from Patillo.

      Patillo testified that he signed an agreement with AcceptanceNow to purchase

furniture for $1400 and that the agreement was for ninety days same as cash.

According to Patillo, he was supposed to pay $192 per month along with a balloon

payment at the end of the ninety days. Patillo denied signing the rental-purchase

agreement that AcceptanceNow entered into evidence or the acknowledgement that

he had read and understood the agreement, and he claimed that it was not his

                                          4
signature on the documents. Patillo testified that he picked up the furniture from Bel

Furniture and then took the furniture to his sister’s house in Houston, because he

was remodeling his house. Pattillo explained that he made the initial payment, but

he never made any additional payments, because the first payment was due when the

hurricane hit. According to Patillo, his sister’s house flooded, and the furniture was

destroyed. Patillo claimed that his sister took pictures of the furniture, but that he

never saw the pictures and his sister no longer had them.

      Patillo testified that he returned home approximately thirty days after the

hurricane, and that he received a letter from AcceptanceNow and spoke with a

representative who demanded $4000 for the furniture. Patillo explained that he also

received a letter from Sergeant Moore, and that Sergeant Moore told him that if he

did not make arrangements to pay $4000 to AcceptanceNow, criminal charges would

be filed. According to Patillo, he talked to Sergeant Moore on two other occasions.

Patillo testified that he was unable to pay AcceptanceNow $4000.

      On rebuttal, the State recalled Sergeant Moore, who testified that he did not

provide Patillo with an exact amount that he needed to pay AcceptanceNow in

restitution. Sergeant Moore also denied speaking to Patillo on more than one

occasion. According to Sergeant Moore, he had attempted to call Patillo after their



                                          5
initial conversation, but Patillo did not answer or return the call. Defense counsel

moved for an instructed verdict, and the trial court denied the motion.

      A jury found Patillo guilty of theft of service. The trial court assessed

punishment at ninety days in county jail but suspended the imposition of the sentence

and placed Patillo on community supervision for two years. The trial court also

assessed a $500 fine and ordered Patillo to pay restitution in the amount of $1300.25.

Patillo appealed.

                                     ANALYSIS

       In issue three, Patillo argues that there is no evidence or insufficient evidence

demonstrating that the demand letter sent by AcceptanceNow was sent with a return

receipt requested as required by section 31.04(c). See Tex. Penal Code Ann. §

31.04(c). According to Patillo, no jury could have rationally concluded beyond a

reasonable doubt that the notice demanding payment was sent in the method

prescribed in section 34.01(c), and his conviction should be reversed. Because this

issue, if sustained, would result in rendition, we address it first. See Price v. State,

502 S.W.3d 278, 281 (Tex. App.—Houston [14th Dist.] 2016, no pet.); see also Tex.

R. App. P. 47.1.

      An essential element of due process as required by the Fourteenth Amendment

is that the State must produce the necessary evidence to convince a factfinder beyond

                                           6
a reasonable doubt of the existence of every element of the offense. Jackson v.

Virginia, 443 U.S. 307, 316 (1979). In reviewing the legal sufficiency of the

evidence, we review all the evidence in the light most favorable to the verdict to

determine whether any rational factfinder could have found the essential elements

of the offense beyond a reasonable doubt. Id. at 319; Hooper v. State, 214 S.W.3d 9,

13 (Tex. Crim. App. 2007). The factfinder is the ultimate authority on the credibility

of witnesses and the weight to be given their testimony. Penagraph v. State, 623

S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981). We give full deference to the

factfinder’s responsibility to fairly resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Hooper, 214 S.W.3d at 13. If the record contains conflicting inferences, we must

presume that the factfinder resolved such facts in favor of the verdict and defer to

that resolution. Brooks v. State, 323 S.W.3d 893, 899 n.13 (Tex. Crim. App. 2010);

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We also “‘determine

whether the necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence when viewed in the light most favorable to the

verdict.’” Clayton, 235 S.W.3d at 778 (quoting Hooper, 214 S.W.3d at 16-17). We

must reverse a conviction on legal sufficiency grounds when no rational factfinder

could find guilt beyond a reasonable doubt based on the evidence presented. Id.

                                          7
      The offense of theft of services under section 31.04(a)(4) requires the State to

prove: (1) a person, (2) with intent to avoid payment for service he knows to be

provided only for compensation, (3) secures the performance of the service by

agreeing to provide compensation, and (4) after the service is rendered fails to make

full payment, (5) after receiving notice demanding payment. Tex. Penal Code Ann.

§ 31.04(a)(4). Section 31.04(c) requires that the notice demanding payment be in

writing and be “sent by registered or certified mail with return receipt requested or

by telegram with report of delivery requested . . . .” Id. § 31.04(c). We measure the

sufficiency of the evidence against the hypothetically correct jury charge, and the

essential elements of the crime are determined by state law. Crabtree v. State, 389

S.W.3d 820, 824 (Tex. Crim. App. 2012). Evidence that a demand letter was sent

with a return receipt requested as required by section 31.04(c) is an element of theft

of service under Section 31.04(a)(4). Tex. Penal Code Ann. § 31.04(a)(4), (c). The

State bears the burden of proving all elements of the offense charged. Sullivan v.

Louisiana, 508 U.S. 275, 277-78 (1993).

      The indictment alleged that after Patillo received notice demanding the return

of the property, Patillo failed to return the property. Patillo challenges the notice

element, arguing that the State failed to demonstrate that the demand letter was sent

with a return receipt requested as required by section 31.04(c). See Tex. Penal Code

                                          8
Ann. § 31.04(c). The State contends that the failure to send written notice by certified

mail with a return receipt requested is not fatal to a prosecution. To support its

contention, the State cites a Court of Criminal Appeals case that is distinguishable

because the offense was charged under 31.04(a)(3), and the notice requirement in

section 31.04(c) does not apply to section 31.04(a)(3). See State v. Larue, 28 S.W.3d

549, 552-53 (Tex. Crim. App. 2000); see also Tex. Penal Code Ann. §§ 31.04(a)(3),

(c).

       The record shows that AcceptanceNow sent a letter to Patillo to provide him

with statutory notice pursuant to section 31.04, but the evidence did not show that

the letter was sent by registered or certified mail with a return receipt requested.

Viewing all the evidence in the light most favorable to the verdict, a rational juror

could not conclude, beyond a reasonable doubt, that the notice demanding payment

was sent to Patillo in the method prescribed in 31.04(c). See Tex. Penal Code Ann.

§ 31.04(a), (c); Jackson, 443 U.S. at 319; see also Hooper, 214 S.W.3d at 13. We

conclude that the evidence was legally insufficient to support Patillo’s conviction.

Accordingly, we sustain issue three. Having sustained issue three, we need not

address issues one, two, and four as they would not result in greater relief. See Tex.

R. App. P. 47.1. We reverse the trial court’s judgment and enter a judgment of

acquittal.

                                           9
      REVERESED AND RENDERED.

                                           ______________________________
                                                  STEVE McKEITHEN
                                                      Chief Justice

Submitted on June 6, 2019
Opinion Delivered August 7, 2019
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




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