Ted Emil Dahl v. State ( 2006 )

Affirmed and Memorandum Opinion filed October 17, 2006

Affirmed and Memorandum Opinion filed October 17, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00535-CR

____________

TED EMIL DAHL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 1002197

M E M O R A N D U M   O P I N I O N

Appellant Ted Emil Dahl was convicted of felony theft of property in the amount of $200,000 or more and sentenced to fifty years= confinement.  In three issues, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction.  We affirm.              

I.  Factual and Procedural Background

This case stems from a family dispute over a home which has been the subject of several legal proceedings.  The dispute began on July 22, 1988 when Rosalie M. Dahl (ARosalie@) executed a warranty deed (A1988 deed@) granting two undivided interests in her home on 1006 Fries Road in Houston, Texas:  one to her daughter, Arleen Dahl Dillon, and the other to her daughter, Karen R. Moszkowicz, and son-in-law, Dominik Moszkowicz (collectively Agrantees@).  Some years later, in 1996, Rosalie obtained a final judgment against the grantees reforming the 1988 deed to grant Rosalie a life estate in the property and designate the grantees as remaindermen in fee simple.  Rosalie thereafter executed a warranty deed granting her interest in the property to the Rosalie Dahl Estate Trust (ATrust@); appellant, her son, acted as trustee.  On September 6, 2001, the Trust obtained a final judgment (A2001 judgment@) against the grantees voiding the 1988 deed due to a defective legal description of the property and finding that no legal title to the property had passed.  The grantees then timely appealed the judgment to this court.  At no point did the grantees post a supersedeas bond to suspend execution or sale of the property during the pendency of the appeal.   

On March 27, 2003, we held that the trial court erroneously declared the 1988 deed void and ordered the trial court to reform the deed to reflect the accurate legal description of the property.  See Dillon v. Rosalie Dahl Estate Trust, No. 14-01-01240-CV, 2003 WL 1565959, at *5 (Tex. App.CHouston [14th Dist.] Mar. 27, 2003, pet. denied) (mem. op., not designated for publication).  We expressly held the Areformation is retroactive to July 22, 1988 to effect the intent of Rosalie Dahl at the time she executed the deed@ and incorporated Rosalie=s life estate in the property pursuant to the 1996 judgment.  Id.  Consequently, the reformation reinstated the grantees= remainder interests in the property.  We issued a final mandate on February 3, 2004.

This appeal concerns appellant=s sale of the Fries Road property subsequent to our holding in Dillon.  On June 5, 2003, the Texas Department of Transportation and the State of Texas agreed to purchase the property from appellant and the Trust for use in an ongoing highway expansion project. Commonwealth Land Title Company of Houston, Inc. (ACommonwealth@) acted as the State=s title insurer in the transaction. Pursuant to its procedures, Commonwealth attempted to verify who held title to the property and determine if any encumbrances would preclude title insurance coverage or closing of the sale.  As of March 24, 2003, Commonwealth had determined that either the grantees (as remaindermen) or appellant (as trustee) held record title in fee simple.  Commonwealth=s records showed a lis pendens pertaining to the lawsuit seeking to void the 1988 deed and stated, AUntil a final, non-appealable Judgment has been entered in said Cause, all parties to the suit must join in any conveyance . . . .@  The records further revealed an outstanding lien on the property executed by the grantees to secure payment for legal fees in a suit involving the property. 

However, by the closing date on July 14, 2003, Commonwealth had amended its records to reflect the following:  (1) appellant, as trustee, held fee simple title to the property for the Trust outright and (2) the lis pendens had been released due to the 2001 judgment.  Susan Simmons (ASimmons@), an escrow officer and closer for Commonwealth, testified that Commonwealth made the above changes based on representations appellant made to her in phone conversations and fax transmissions from May 28, 2003 to July 14, 2003.  In these communications, appellant told Simmons that Athe suit involving his sisters had been settled@ and that he owned and had the right to sell the property.  To back up his claims, appellant repeatedly faxed her copies of the 2001 judgment, along with findings of facts and conclusions of law, in which the trial court effectively voided the grantees= remainder interests.  Simmons testified that appellant never told her that any of the other parties mentioned in prior deeds or documents retained an interest in the property and failed to mention that the Trust, or Rosalie, as beneficiary, held only a life estate. Simmons further testified, and appellant admitted, he never disclosed to her or others involved in the transaction that the 2001 judgment had been appealed or reversed on appeal. 

At closing, Simmons wrote appellant a check for $510,707.35, the agreed upon sales price of $570,000 minus Commonwealth=s expenses and fees.  Along with other closing documents, appellant signed an affidavit declaring he knew of no adverse claims to the property.  Simmons testified she would not have closed the sale or written a check to appellant had she known about the Dillon decision.  After the closing, with the help of appellant, Rosalie withdrew the sale proceeds from the Trust bank account in cash, all of which has since disappeared after Rosalie purportedly lost it in a fraudulent investment scheme.

Thereafter, a grand jury indicted appellant for theft by deception of an amount $200,000 or more, namely the sale proceeds from appellant=s sale of the Fries Road home.  The indictment named Simmons as the complainant and owner of the sale proceeds and alleged the following theories of deception by appellant:

[1] by selling or otherwise transferring or encumbering property without disclosing a lien, security interest, adverse claim, or other legal impediment to the enjoyment of the property, and/or [2] by creating or confirming by words or conduct a false impression of law or fact that was likely to affect the judgment of the Complainant in the transaction which the Defendant did not believe to be true, and/or [3] by failing to correct a false impression of law or fact that was likely to affect the judgment of the Complainant in the transaction which the Defendant did not believe to be true. 

Appellant now appeals his conviction, asserting the evidence is legally and factually insufficient to prove that:  (1) Simmons owned the sale proceeds, (2) appellant had the requisite intent to deprive Simmons of the sale proceeds, and (3) appellant acquired or exercised control over the proceeds without Simmons=s effective consent.

II.  Standard of Review

 In evaluating a legal-sufficiency claim attacking a jury=s finding of guilt, we view the evidence in the light most favorable to the verdict.  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).  We do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318B19 (1979).  Rather, we determine only whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000).  In our review, we accord great deference A >to the responsibility of the trier of fact [to fairly] resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.= @  Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996) (quoting Jackson, 443 U.S. at 319).     In conducting a factual-sufficiency review of the jury=s determination, we do not view the evidence Ain the light most favorable to the prosecution.@  Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).  Instead, we view the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).  We may find the verdict is factually insufficient in two ways.  First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt.  Id.  Second, after weighing the evidence supporting the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met.  Id.  Our evaluation should not intrude upon the fact-finder=s role as the sole judge of the weight and credibility given to any witness=s testimony.  Cain, 958 S.W.2d at 407. 

III. Analysis

A person commits theft by unlawfully appropriating property with the intent to deprive the owner of the property.  Tex. Penal Code Ann. ' 31.03(a) (Vernon Supp. 2005). Appropriation is unlawful if performed without the owner=s effective consent.  Id. ' 31.03(b)(1).  Consent is ineffective if induced by deception.  Id. ' 31.01(3)(A) (Vernon Supp. 2005).

A.  Ownership       

Appellant first challenges the legal and factual sufficiency of the evidence to show that Simmons, the complainant named in the indictment, was the Aowner@ of sale proceeds from the purchase of the home.^[1] The Texas Penal Code defines an Aowner@ as someone who Ahas title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.@  Tex. Penal Code Ann. ' 1.07(a)(35) (Vernon Supp. 2005).  APossession@ means actual care, custody, control, or management.  Id. ' 1.07(a)(39). Thus, any person who has a greater right to the actual care, custody, control, or management of the property than the defendant can be classified as the Aowner.@  Alexander v. State, 753 S.W.2d 390, 392 (Tex. Crim. App. 1988).  The prosecution may demonstrate proof of ownership by circumstantial evidence.  Jordan v. State, 707 S.W.2d 641, 644B45 (Tex. Crim. App. 1986).

At trial, Simmons described Commonwealth=s procedure for handling sale proceeds in transactions where the State of Texas purchases property as follows:

A:        The State has the checks payable to both the property owner and Commonwealth Title.  The property owner endorses it over to me and I put it in my bank account.  And then I disburse the funds, having to pay off anything that has to come out of thoseCthose proceeds.  If there are delinquent taxes or liens or anything like that on the property that has to come out of the sales price.

Q:        So it goes into Commonwealth=s bank account; is that right?

A:        Correct.

Q:        Becomes Commonwealth=s property?

A:        It=s the escrow account=s, yeah . . .

Q:        And you disburse the money you said yourself fromCfrom that account?

A:        Correct.

Pursuant to Commonwealth=s procedure, appellant endorsed the check from the StateCpayable to himself and CommonwealthCover to Commonwealth so Simmons could complete the transaction.  At that point, Simmons had custody over the sale proceeds and controlled the funds in that she had the authority as escrow officer and closer to deduct Commonwealth=s expenses and fees.  Only then, and through Commonwealth=s bank account, did Simmons disburse the remaining funds to appellant.  That Simmons had discretion to subtract amounts for delinquent taxes, liens, and the like further evidences her right of control over the funds. Indeed, appellant could not obtain the funds from Simmons until she performed this screening function.  As such, substantial evidence exists that Simmons had a greater right to the actual care, custody, control, and management of the sale proceeds than appellant and thus became the owner of the proceeds.  See Chowdhury v. State, 888 S.W.2d 186, 187 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d) (holding that district sales manager of convenience store chain having supervisory authority over area stores and money transactions therein had greater right to possession of money in the store than defendant store manager); see also Smith v. State, No. 14-95-01354-CR, 1998 WL 724601, at *4B5 (Tex. App.CHouston [14th Dist.] Oct. 8, 1998, pet. ref=d) (not designated for publication) (holding that insurance claims representative having authority to settle claims and issue checks had greater right to possession of claim check than defendant requesting claim check); cf. Grant v. State, No. 14-01-00475-CR, 2002 WL 835016, at *4 (Tex. App.CHouston [14th Dist.] May 2, 2002, pet. ref=d) (not designated for publication) (affirming theft conviction where title insurance companies were considered owners of proceeds from the sale of property).^[2] 

Viewing the evidence in a light most favorable to the verdict, we conclude a reasonable trier of fact could have found beyond a reasonable doubt that Simmons had a greater right to possession of the sale proceeds and, therefore, was the owner of the proceeds. Viewing the same evidence in a neutral light, we conclude the jury was also rationally justified in finding Simmons was the owner of the sale proceeds.  We overrule appellant=s first issue. 

B.  Intent to Deprive

Appellant next argues the State failed to demonstrate legally or factually sufficient evidence of intent to deprive.  AA person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.@  Id. ' 6.03(a) (Vernon 2003).  The Penal Code defines Adeprive@ in part as Ato withhold property from the owner permanently@ or Ato dispose of property in a manner that makes recovery of the property by the owner unlikely.@  Id. ' 31.01(2)(A), (C) (Vernon Supp. 2005).  The fact-finder determines intent to deprive from the words and acts of the defendant and the surrounding circumstances.  Winkley v. State, 123 S.W.3d 707, 713 (Tex. App.CAustin 2003, no pet.) (citing Banks v. State, 471 S.W.2d 811, 812 (Tex. Crim. App. 1971)).  Although the State need not prove actual deprivation to prove intent to deprive, evidence of actual deprivation may constitute evidence of intent to deprive.  Rowland v. State, 744 S.W.2d 610, 612 (Tex. Crim. App. 1988).

          Appellant maintains that Anothing was deprived from the complainant@ because Commonwealth, after extracting its fees from the sale proceeds, was not out any money.  Thus, appellant reasons, insufficient evidence exists to show intent to deprive, as A[d]eprivation of property from the rightful owner, without the owner=s consent, is the crucial element of theft.@  We disagree with this argument because it focuses on the fees Simmons extracted for Commonwealth and assumes someone other than Simmons owned the remaining sale proceeds.  However, as noted above, Simmons was the Aowner@ of the entire sale proceeds for the operative period of time.  

Furthermore, the record contains substantial evidence from which a jury could infer appellant intended to deprive Simmons of the sale proceeds.  Appellant repeatedly represented to Simmons that the suit over the property had been settled and that he owned and could sell the property, which Simmons relied on in transferring the remaining proceeds over to him.  He then helped Rosalie withdraw the entirety of the proceeds in cash, all of which has now disappeared permanently or in such a manner making recovery unlikely.  Appellant=s words and actions, along with the actual deprivation from Simmons of the sale proceeds, are evidence of his intent to deprive.  See Rowland, 744 S.W.2d at 613 (holding that deceiving truck owner into allowing defendant to borrow truck and failing to return truck as promised constituted circumstantial evidence of intent to deprive); see also Ieremia v. State, No. 08-00-00380-CR, 2002 WL 1939154, at *5 (Tex. App.CEl Paso Aug. 22, 2002, pet. ref=d) (not designated for publication) (holding that obtaining payments from school district through deception and withdrawing such payments from bank account shortly thereafter constituted actual deprivation sufficient to show intent to deprive).

Viewing the evidence in a light most favorable to the verdict, we conclude a reasonable trier of fact could have found beyond a reasonable doubt that appellant intended to withhold property from Simmons permanently or to dispose of the property in a manner making recovery unlikely. Viewing the same evidence in a neutral light, we conclude the jury was also rationally justified in finding appellant had the requisite intent to deprive. We overrule appellant=s second issue. 

C.  Effective Consent

In his third and final issue, appellant challenges the legal and factual sufficiency of the evidence to show he appropriated the sale proceeds without Simmons=s effective consent.  Consent by the owner becomes ineffective where induced by deception. Tex. Penal Code Ann. ' 31.01(3)(A).  The Penal Code defines Adeception@ to include:  

(A) creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that actor does not believe to be true;

(B) failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true; [or] . . .

(D) selling or otherwise transferring or encumbering property without disclosing a lien, security interest, adverse claim, or other legal impediment to the enjoyment of the property, whether the lien, security interest, claim, or impediment is or is not valid, or is or is not a matter of official record. 

Id. ' 31.01(1)(A)B(B), (D).

Appellant contends he did not fail to disclose an adverse claim to the property under section 31.01(1)(D) because he disclosed to Simmons Athe existence of the dispute over the ownership of the property@ by informing her of the 2001 final judgment voiding the grantees= remainder interests.  The State counters that appellant failed to disclose an adverse claim by admittedly neglecting to disclose both that the grantees had appealed the 2001 final judgment and that we reversed the judgment nearly four months before the closing date.  See Dillon, 2003 WL 1565959, at *5.  The Court of Criminal Appeals upheld a finding of theft by deception under similar circumstances in Russell v. State, 551 S.W.2d 710, 713B14 (Tex. Crim. App. 1977).  There, the defendant contracted to sell property without having clear title and obtained a down payment from the prospective purchaser without disclosing the existence of any adverse claims or liens.  Id. The court held the defendant committed theft by deception by failing to disclose liens and security interests in the property he attempted to sell.  Id. at 713B14.  In so holding, the court noted the affirmative duty to disclose legal impediments to the enjoyment of property before transfer operates regardless of whether such impediments are valid or a matter of public record.  Id. at 714.    

Like the defendant in Russell, appellant knew of a legal impediment to enjoyment of the property he attempted to sell, as he was aware of his grantees= appeal and of the Dillon decision.  Moreover, he knew of his duty to disclose such an adverse claim, as did the defendant in Russell, because he signed an affidavit at closing declaring he had no knowledge of adverse claims to the property.  Further, although appellant did disclose to Simmons the existence of the 2001 judgment, his repeated, unequivocal assurances that such dispute was Aover@ were clearly false.  Accordingly, the evidence was legally and factually sufficient to support a finding that he induced consent by deception. 

Appellant further claims he believed he had the authority to sell the property Apending final resolution of the appeal@ because his mother had at least a life estate in the property, the grantees posted no supersedeas bond to suspend enforcement of the 2001 judgment, and we had not yet issued a mandate for Dillon by the closing date.  Therefore, appellant reasons, the evidence is legally and factually insufficient to show that he did not believe to be true the fact he had authority to sell the property under sections 31.01(1)(A) and (B).  Where disjunctive theories are submitted to the jury, and the jury renders a general verdict of guilty, such verdict should be affirmed as long as there is sufficient evidence to support one of the theories presented.  Guevara v. State, 191 S.W.3d 203, 207B08 (Tex. App.CSan Antonio 2005, pet. ref=d). Accordingly, given our finding above that legally and factually sufficient exists to support a finding of theft by deception under section 31.01(1)(D), we need not address his sufficiency challenges to alternative theories of deception.

 Viewing the evidence in a light most favorable to the verdict, we conclude a reasonable trier of fact could have found beyond a reasonable doubt that appellant unlawfully appropriated the property without Simmons=s effective consent because of his failure to disclose an adverse claim. Viewing the same evidence in a neutral light, we conclude the jury was also rationally justified in finding appellant unlawfully appropriated the property without effective consent.  We overrule appellant=s final issue. 

We affirm the trial court=s judgment.     

/s/        Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed October 17, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

---

^[1]  Simmons is a Aspecial owner@ of the sale proceeds.  AA >special owner= is an individual who is in custody or control of property belonging to another person.@  Harrell v. State, 852 S.W.2d 521, 523 (Tex. Crim. App. 1993).  When a corporation is the owner of the property that has been stolen, it is the preferable pleading practice to allege special ownership in a natural person acting for the corporation.  Simpson v. State, 648 S.W.2d 1, 2 (Tex. Crim. App. 1983).  Appellant appears to concede this point, as he names Simmons and Commonwealth interchangeably throughout his brief in complaining that neither owned the sale proceeds. 

^[2]  Appellant cites Freeman v. State, in which the Court of Criminal Appeals held that where two parties have competing equal possessory interests in the property at the time of the actual commission of the offense, the State must prove beyond a reasonable doubt that the complainant in fact had a greater right to possession than the defendant.  707 S.W.2d 597, 604 (Tex. Crim. App. 1986).  Appellant=s reliance on Freeman is misplaced.  The critical fact in Freeman was that both the defendant cashier and the complainant security guard had competing equal possessory interests in the property at the time of the offense because they were both employees of the same store and neither position had any discernable superiority as to possession of store merchandise.  See generally Long v. State, 7 S.W.3d 316, 321 (Tex. App.CBeaumont 1999, no pet.) (noting the unique nature of the employee relationship in Freeman and opining that such narrows Freeman=s application regarding Aowner[ship]@ in theft cases).  Here, as explained above, appellant and Simmons did not have competing equal possessory interests at the time of the offense, which was when appellant obtained the funds from Simmons. Simmons, in accordance with Commonwealth=s procedure, had custody of the money and controlled it to the extent she had discretion to deduct fees and other amounts to account for encumbrances.  Such authority gave Simmons a greater right to possession of the proceeds at the time she wrote the check to appellant.