Opinion
Nos. 14-07-00946-CR, 14-07-00947-CR
Opinion filed January 29, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 337th District Court Harris County, Texas, Trial Court Cause Nos. 1115118, 1124756.
Panel consists of Chief Justice HEDGES and Justices GUZMAN and BROWN.
MEMORANDUM OPINION
A jury convicted appellant Chauncey Middleton of two counts of theft of services and sentenced him to five years' incarceration for each count. In his first and second appellate issues, he contends that the trial court erred by refusing to include his requested jury instruction on the lesser-included offense of misdemeanor theft and denying his motion to quash the indictment. In his third and fourth issues, he challenges the factual sufficiency of the evidence to support his conviction and claims a fatal variance exists between the indictment and proof. We affirm.
I. BACKGROUND
In separate causes, appellant was indicted for two counts of the offense of theft of services by deception or false token. The causes were consolidated for a jury trial. Diana Mascarenhas, who worked at Front Office Business Center in Houston, testified that in August 2006 appellant inquired about renting office space. Mascarenhas explained that Front Office Business Center leased furnished or unfurnished office space to individuals or businesses and provided other services such as phone, voicemail or technology packages and secretarial or word-processing services. According to Mascarenhas, appellant stated that he needed to rent a furnished office quickly for his business, American Physicians Financial Services, Inc. Mascarenhas assisted appellant in selecting an open office suite and furniture. Based on his selection of services and furniture, Mascarenhas provided appellant with an estimate of his monthly charges. Mascarenhas further testified that appellant returned to Front Office Business Centers a few days later, accompanied by an individual he introduced as Bobbie Phillips. Mascarenhas stated that, after she explained the rental agreement, appellant instructed Phillips to complete various forms and sign the lease, with monthly recurring charges for the office space and various other services of $1,533.98. Phillips signed the lease agreement and a credit application as vice president of American Physicians Financial Services. Mascarenhas explained that Front Office Business Centers entered into a one-year lease for office furniture on behalf of appellant, based on his representations to her. Mascarenhas stated that she informed appellant he had to pay $2,882.86 before he could occupy the office space; appellant instructed Phillips to provide a check for this amount. The check appeared to be drawn on a Whitney National Bank account in the name of MedTex Medical Billing Inc. According to Mascarenhas, appellant occupied the office space for about three weeks, but the check for $2,882.86 was returned unpaid by Whitney National Bank marked "UNABLE TO LOCATE ACCOUNT IN OUR FILES." Mascarenhas testified she was unable to collect the funds from appellant, so she attempted to re-rent the now-furnished office space. After about two months, she found a new tenant. On cross-examination, she described Front Office Business Centers' typical collection process when a tenant fails to make lease payments, but stated that process was not followed in this case. Mascarenhas reiterated that it was Bobbie Phillips who had actually signed the rental agreement, but that appellant had occupied the office space. Joanne Deleon and Glenda Garza, employees of the Valencia Condominiums on Old Spanish Trail in Houston, identified appellant as the individual who leased a condominium at the Valencia in late September 2006. According to Deleon, the condominiums are offered for sale and lease to investors. Appellant came to the condominium office and told Deleon he was interested in leasing a unit immediately for his "clients." Deleon showed him the only available unit; appellant completed a lease application in the name of American Physicians Financial Services, Inc. and signed a rental agreement for a twelve-month lease. Appellant provided a check for $3,225.00, which included rental charges in lieu of a security deposit and pro-rated rent to the end of the month. According to both Deleon and Garza, appellant furnished and occupied the rental unit. Garza stated that although appellant informed her he was leasing the unit for use by his clients, appellant himself moved in on the same day he signed the lease agreement. About two weeks after appellant leased the condominium unit, the check he had provided to the Valencia was returned dishonored by Woodforest Bank. Although the face of the check indicated it was drawn on a business account in the name of "American Physicians Financial," Julia Diane Douglas, Senior Vice President of Deposit Operations for Woodforest Bank, testified that the check was actually drawn on appellant's personal account. According to Douglas, the total amount deposited in appellant's personal account was $870.00. Further, she explained that the type of check used to pay the Valencia Condominiums was not the kind typically issued by the bank. Finally, she testified that the signature on the checks appeared to match the signature on file for appellant's personal account. Before the case was submitted to the jury, appellant's counsel asked the trial court to include Texas Penal Code section 31.04(b) in the jury's instructions. This subsection provides: For purposes of this section, intent to avoid payment is presumed if:(1) the actor absconded without paying for the service or expressly refused to pay for the service in circumstances where payment is ordinarily made immediately upon rendering the service, as in hotels, campgrounds, recreational vehicle parks, restaurants, and comparable establishments;
(2) the actor failed to make payment under a service agreement within 10 days after receiving notice demanding payment;
(3) the actor returns property held under a rental agreement after the expiration of the rental agreement and fails to pay the applicable rental charge for the property within 10 days after the date on which the actor received notice demanding payment; or
(4) the actor failed to return the property held under a rental agreement . . . within three days after receiving notice demanding return, if the property is valued at $1,500 or more.TEX. PENAL CODE ANN. § 31.04(b) (Vernon Supp. 2008). During the charge conference, the State argued as follows against the requested inclusion of this language:
[W]e have pled this case under [Texas Penal Code section] 31.04(a)(1). The Defense is asking, under section 31.04(a) — I'm sorry — 31.04(b)(1), (2), (3), and (4), that all the presumptions for intent to avoid payment be included in the charge.
. . .
Under 31.04, Section 4 — 31.04(a)(4), if we had selected to plead it under that paragraph, it requires failure of payment after receiving notice and demanding payment; but we have not alleged it that way. We have alleged it as secured performance of the service by deception and false token.
The defendant is attempting to put in a presumption to avoid payment, holding the State to a higher burden of proof and misleading this jury, saying that if there is not notice, then there cannot be a criminal charge. That is improper. That would be an improper charge and improper comment on the evidence. It does not track the statute in the pleadings for which the defendant is charged. . . .The defense responded that "once they know that they haven't gotten their money, they have to give him notice and time to pay." The trial court denied appellant's request to include this instruction. Appellant also sought an instruction on the lesser-included offense of misdemeanor theft of services. In response to the trial court's inquiry regarding the evidence in support of this requested instruction, appellant stated, "Because he did not utilize that property or service beyond a period of time that would be $1500 or more in each situation. There was questionable testimony about how long he actually utilized the property." The trial court refused the requested instruction. After the charge conference, the State's final witness, Doug Osterberg, testified. Osterberg stated that he is an investigator with the Harris County District Attorney's office, and he described appellant's arrest in Alvin, Texas. According to Osterberg, appellant was driving a 2004 green Jaguar. Inside the car, officers found "many pieces of paper, checkbooks, and many articles that we recovered and brought down to our office." Osterberg described his actions in developing and presenting a photo array including appellant's photograph to several of the witnesses in this case. Osterberg also testified that Bobbie Phillips had been arrested for an unspecified felony offense regarding his involvement with the transaction with Front Office Business Centers. The jury found appellant guilty as charged in the indictments. At the close of the punishment phase, the jury answered "true" to two enhancement paragraphs and assessed punishment at five years' confinement in the Texas Department of Criminal Justice, Institutional Division, for each of the charged offenses, with the sentences to be served consecutively. The trial court rendered judgment on the jury's verdict.
II. ISSUES PRESENTED
In his first issue, appellant contends his convictions in both causes should be reversed because the trial court refused to charge the jury on the lesser-included charge of misdemeanor theft. Appellant asserts in his second issue that the trial court's refusal to quash the State's indictments in both causes under the doctrine of in para materia constitutes reversible error. In his third issue, appellant challenges the factual sufficiency of the evidence. Finally, appellant argues that a fatal variance exists between the indictment and the proof in his fourth issue.IV. ANALYSIS
A. Lesser-Included Offense
A jury charge on a lesser-included offense is warranted when (1) the offense is actually a lesser-included offense of the charged offense, and (2) there is some evidence in the record that would permit a rational jury to find the defendant guilty only of the lesser offense. Arnold v. State, 234 S.W.3d 664, 670-71 (Tex.App.-Houston [14th Dist.] 2007, no pet.). Neither party disputes that misdemeanor theft of services is a lesser-included offense of felony theft of services; the only difference between the two offenses is the value of the services stolen. Compare TEX. PENAL CODE ANN. §§ 31.04(e)(1), (2), (3) (Vernon Supp. 2008) (offense is a Class A misdemeanor if value of stolen service is less than $1,500) with id. § 31.04(e)(4) (offense is a state jail felony if value of stolen service is $1,500 or more but less than $20,000). We therefore consider only whether the second prong of the test was met in this case. This requirement is satisfied if there is some evidence from which a rational juror could find that the value of the stolen services was less than $1,500. Value of property or service in a theft case is the fair market value of the property or service at the time and place of the offense. See id. § 31.08(a)(1) (Vernon 2003). Such value can be proven by evidence of the retail or sales price, by the testimony of an owner's opinion of value, or an expert opinion of value; however no single method has been held to be conclusive. See Keeton v. State, 803 S.W.2d 304, 305 (Tex.Crim.App. 1991) (en banc). Here, Mascarenhas testified that to secure the office space with the options appellant selected, appellant agreed to pay $2,882.86 before he could occupy the space. Likewise, Garza testified that to secure the condominium unit appellant selected, appellant agreed to pay $3,225.00. The jury was provided copies of the fraudulent checks appellant presented to secure these services. For each count in the indictment, therefore, the value of the services appellant stole was more than $1,500 and less than $20,000, which falls into the value range for a state jail felony offense. See TEX. PENAL CODE ANN. § 31.04(e)(4). Appellant's argument ignores section 31.08(a)(1) of the Texas Penal Code, which unambiguously describes how value is determined: the value of stolen services is equal to the fair market value of the services "at the time and place of the offense." TEX. PENAL CODE ANN. § 31.08(a)(1). This figure was established at trial by unrebutted evidence, including the testimony of witnesses, the leases, and the amounts of the dishonored checks used to induce the complainants to render their services. Cf. Keeton, 803 S.W.2d at 306 ("A defendant is free to rebut a store price as representative of fair market value by showing that such retail or sale price was inflated by that store. . . ."); Jones v. State, 821 S.W.2d 234, 237 (Tex.App.-Houston [14th Dist.] 1991, pet. ref'd) (noting that, because the appellant offered no evidence rebutting the owner's testimony regarding the stolen item's value, the jury could accept that valuation in determining whether the stolen goods were valued at more than $750 but less than $20,000); Ketchum v. State, 707 S.W.2d 718, 719 (Tex.App.-Texarkana 1986, no pet.) (explaining that testimony from an agent of a property owner or service provider as to value is sufficient to establish fair market value); Salazar v. State, 711 S.W.2d 720, 723-24 (Tex.App.-Corpus Christi 1986, pet. ref'd) (value of merchandise subject of theft charge was established as exceeding statutory minimum of $750 given evidence that dishonored check was made out in the amount of $5,700, invoice for the merchandise shipped to the defendant indicated a total value, less a discount, of $5,171.71, and the owner placed a reasonable market value on the merchandise of $5,443.90). Contrary to appellant's argument, "the corrective action taken by the two complaining witnesses" is irrelevant; the value of each of the stolen services at the time and place of the offense is readily ascertainable, and these services are not rendered less valuable by the complainants' quick action in detecting, reporting, or mitigating the effect of the thefts. Because there is no evidence in the record that would permit a rational jury to find that the value of the stolen services was less than $1,500, a charge on the misdemeanor offense of theft of services was not warranted. Cf. Arnold, 234 S.W.3d at 671. We therefore overrule appellant's first issue.B. Motion to Quash Indictment
Appellant also filed a motion in arrest of judgment, which is essentially a post-trial motion to quash the indictment. Crittendon v. State, 923 S.W.2d 632, 634 (Tex.App.-Houston [1st Dist.] 1995, no pet.).
C. Sufficiency of the Evidence
1. Factual Sufficiency In his third issue, appellant challenges the factual sufficiency of the evidence to support his conviction. When reviewing the factual sufficiency of the evidence, we view all the evidence in a neutral light and set aside the verdict "only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997) (en banc) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996) (en banc)). Before we may reverse for factual insufficiency, we must first be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). When reviewing the evidence, we must avoid intruding on the factfinder's role as the sole judge of the weight and credibility of the witness testimony. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000) (en banc). We do not re-evaluate the credibility of witnesses or the weight of evidence, and we will not substitute our judgment for that of the factfinder. Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App. 1998). Appellant asserts that the evidence is factually insufficient because: (1) the State failed to prove the elements of fraud and false token; (2) there was insufficient evidence of value because the opinion testimony of a complainant alone cannot establish value; and (3) the State failed to show the lies essential for a fraud case or the false tokens offered in exchange for the services. The State established that the checks offered by appellant in exchange for the services he secured were fraudulent. As detailed above, the check appellant provided to Front Office Business Centers appeared to be drawn on a Whitney National Bank account in the name of MedTex Medical Billing Inc. But this account had been closed for several years, and appellant had been notified that the account was closed. The check appellant provided to the Valencia Condominiums was purportedly drawn on a business account in the name of Physician Financial Services, Inc. The account number, however, was actually associated with appellant's personal account, which contained insufficient funds to cover the check. The jury was provided copies of these checks, along with bank records and testimony from bank employees regarding the status of the accounts. Thus, these checks sufficed to establish the "false token" allegation. By presenting these false tokens to the complaining witnesses, appellant "creat[ed] or confirm[ed] a false impression of law or fact that [was] likely to affect the judgment of another in the transaction[s.]" See TEX. PENAL CODE ANN. § 31.01(1) (defining "deception"). Finally, as discussed supra, the value of the stolen services at the time and place of the offenses was established by unrebutted evidence. See id. § 31.08(a)(1). After viewing all the evidence in a neutral light, we cannot say that the jury's verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We therefore overrule appellant's third issue. 2. Variance In his fourth issue, appellant asserts that the State, by alleging that he attempted to steal services by "fraud and false token" and attempting to prove that he was guilty of "theft by check," created a fatal variance between the charging instrument and the proof offered at trial. Thus, he contends the evidence is insufficient to support his conviction. In cases involving a sufficiency claim based on a variance between the indictment and the evidence, we consider the materiality of the variance. Fuller v. State, 73 S.W.3d 250, 253 (Tex.Crim.App. 2002) (en banc); Rogers v. State, 200 S.W.3d 233, 236 (Tex.App.-Houston [14th Dist.] 2006, pet. ref'd). A variance is fatal, i.e., renders the evidence insufficient, only when it is material. Fuller, 73 S.W.3d at 253; Gollihar v. State, 46 S.W.3d 243, 257 (Tex.Crim.App. 2001); Rogers, 200 S.W.3d at 236. "A variance is material if it (1) deprived the defendant of sufficient notice of the charges against him such that he could not prepare an adequate defense, or (2) would subject him to the risk of being prosecuted twice for the same offense." Rogers, 200 S.W.3d at 236 (citing Fuller, 73 S.W.3d at 253; Gollihar, 46 S.W.3d at 257). The burden of demonstrating the materiality of a variance rests with the defendant. Id. (citing Santana v. State, 59 S.W.3d 187, 194-95 (Tex.Crim.App. 2001)). Appellant asserts his sufficiency argument as follows:The State failed to establish two things, and these two things are the key root of its failure. First it failed utterly to establish what they [sic] alleged, although one could argue they made a fair go at attempting to prove theft by check under [s]ub-section [(a)]4 of Artile 31.04.
However, since the State alleged that the [a]ppellant offered to steal services by fraud and false token, and then set out proving (or rather attempting to prove, as will be shown) theft by check not honored after demand for payment, they created a fatal variance between their own charging instrument and the proof offered at trial. Since they had a chance to change their pleadings after the defense [m]otion to [q]uash placed them on notice, but instead chose to forge boldly ahead on an allegation that could not possibly match the evidence, they have only themselves to blame.
Last, the State's case also fails, having offered to prove fraud and having tried instead to prove theft by check, they completely failed to provide proper notice was received by the [a]ppellant of demand for payment. In fact, one of their witnesses testified that she could not confirm the delivery [] of demand at all.As discussed more thoroughly supra, however, the State properly charged appellant with theft of services under Texas Penal Code subsection 31.04(a)(1). Further, for the same reasons the evidence is factually sufficient, the evidence is likewise legally sufficient. We therefore conclude that there is no variance, material or otherwise, between the allegations and the proof and overrule appellant's fourth and final issue.