Kevin Lavelle Kent v. State , 2014 Tex. App. LEXIS 9604 ( 2014 )

Reversed and Remanded and Opinion filed August 28, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00375-CR
KEVIN LAVELLE KENT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 1253665
OPINION
In an issue of first impression, we must decide whether statutory violations
aggregated for purposes of Section 31.09 of the Penal Code, the aggregate theft
statute, are elements that the jury must unanimously agree upon, or whether the
violations are mere manner and means for which no unanimity is required.1
1
See Tex. Penal Code Ann. § 31.09 (“When amounts are obtained in violation of this
chapter pursuant to one scheme or continuing course of conduct, whether from the same or
several sources, the conduct may be considered as one offense and the amounts aggregated in
determining the grade of the offense.”).
Determining what elements of a statute require unanimity is a matter of legislative
intent. In construing the aggregate theft statute, we conclude that unanimity is
required for the gravamina of the underlying statutory violations that are
aggregated for purposes of the offense of aggregate theft.
Because the jury charge did not require this unanimity and appellant suffered
some harm, we reverse and remand for a new trial.
I. BACKGROUND
Appellant was charged by complaint with theft of money in the aggregate of
over $200,000 from Barbara Allen, Tamara Allen, Larry Aniol, and Joann Aniol
during a period of five years. The State presented evidence that the Aniols,
husband and wife, wished to sell their commercial property, River Gardens, to
Barbara Allen for $19.5 million. Tamara Allen was Barbara’s daughter and
business partner. An intermediary put the Aniols and Barbara in touch with
appellant and his d/b/a, Orlando Mortgage Company, so appellant could serve as a
mortgage broker for Barbara and secure financing for the transaction. The State
presented evidence that appellant convinced the Aniols and Barbara to transfer
money to him by his use of various deceptions, including lies about his ability to
secure financing, the involvement of his father, statements on his website about his
past deals, and a purported $50 million line of credit issued to Orlando Mortgage.
Ultimately, the State adduced evidence that the Aniols and Barbara transferred
over $1.4 million to appellant. The Aniols and Barbara believed their money was
being held in escrow, but when the sale never closed, appellant did not return the
money to them.
Joann and Barbara testified about the various transfers made to appellant on
the River Gardens transaction. Barbara started speaking with appellant in February
2003. He said he would be able to provide 100 percent financing for Barbara to
2
purchase River Gardens. Appellant told Barbara she could “buy down” the interest
rate from 7.5 percent to 4.95 percent if she gave him $200,000. Appellant asked
Joann to help Barbara buy down the interest rate. The Aniols agreed to help, so
Barbara and the Aniols signed a “short term loan” agreement for $200,000. The
Aniols gave Barbara $200,000 with the understanding that the money would go
into escrow and the Aniols would be repaid at closing. Barbara then transferred
the $200,000 to appellant in May 2003.
Appellant called Barbara again and offered a buy down on the interest rate to
3.95 percent for an additional $100,000. Barbara gave appellant $100,000 in June
2003. In October 2003, appellant asked for a $300,000 “good faith deposit” from
the Aniols. Appellant and the Aniols signed a document memorializing that the
$300,000 was a “good faith assurance on [the Aniols’] part to [appellant’s] father,
who is making available a reserve account to Barbara Allen for 18 months of debt
service.” 2 The document indicated that the money would be placed in escrow, and
“[u]nder any and all circumstances, the $300,000 will be returned to [the Aniols] in
its entirety.” The Aniols sent appellant another $150,000 in February 2004, which
according to Joann “was to be used as part of the points down, helping with the
points.” She understood it was going into an escrow account and would be
returned to the Aniols at the time of closing.
In August 2004, appellant signed and faxed to the Aniols an escrow
agreement acknowledging the Aniols’ deposit of $450,000 to date “in a non-
interest bearing account to escrow.” The agreement states that if “the sale does not
or will not otherwise occur, the $450,000.00 paid by Seller into escrow will
automatically be paid and returned to Seller in immediately available funds.”
2
Barbara explained that debt service is the ability to “meet the note over your
income. . . . To run your property.”
3
In December 2004, appellant requested another $125,000 from Barbara, and
again the Aniols loaned Barbara the money with the understanding the money
would be put into an escrow account and they would be paid back at closing.
Barbara gave the money to appellant with the understanding it was going into
escrow. Joann thought this money was needed because of a difference in appraisal
values of her property, but Barbara testified this money was to provide “good
faith” for the “people at the bank who controlled all the loans.”
In May 2005, appellant asked the Aniols to “put up” an additional $200,000
for “debt service.” The Aniols sent the money with the understanding the money
would go into an escrow account and be returned at the time of closing.
Ultimately, appellant asked the Aniols for an additional $250,000 in November
2005. But Joann was “so disgusted I just wanted to scream,” and she and her
husband told appellant the sale was not going through and that they wanted their
money back. The Aniols sent appellant a demand letter in December 2005 for
return of their $775,000, and they sent Barbara a demand letter for return of the
initial $200,000 loan. Joann testified that she prepared a document, State’s Exhibit
65, which identifies the five separate transfers the Aniols made to appellant
(directly and through Barbara) over the course of about two years. The total
amount the Aniols transferred to appellant was $975,000, including the $200,000
and $125,000 loans to Barbara in May 2003 and December 2004, respectively.
Joann testified that appellant never returned any of the money, despite the lack of a
closing for River Gardens.
When the Aniols called off the River Gardens deal, appellant told Barbara
that he had returned the Aniols’ money. He also offered to provide Barbara a $25
million line of credit toward the purchase of a hotel. However, to keep the line of
credit open, appellant said that the bank wanted “good faith debt service” money.
4
So Barbara transferred an additional $337,000 to appellant over the next several
years with the understanding the money was going into escrow, as follows:
• March 17, 2006 $74,000
• September 8, 2006 $10,000
• August 20, 2006 $50,000
• November 30, 2006 $50,000
• April 30, 2007 $15,000
• May 30, 2007 $15,000
• July 26, 2007 $30,000
• September 28, 2007 $13,000
• December 3, 2007 $40,000
• January 11, 2008 $10,000
• February 28, 2008 $5,000
• March 13, 2008 $25,000
Barbara testified that although some payments may have been made by Tamara, it
was like Barbara sending the money because they were partners; and if Barbara
sent money, it was like Tamara sending the money.
Barbara attempted to secure financing for “maybe under 10” hotels, but
every time she and the hotels’ owners complied with appellant’s requests, “there
would be a problem that he could not complete it.” Ultimately, when the last hotel
owner decided to pull out of the deal due to appellant’s labor-intensive demands
and prolonged closings, Barbara demanded return of her money from appellant.
He did not return any of her money.
Appellant testified that the various amounts transferred to him by the Aniols
and the Allens were fees for services rendered—he considered all the payments to
be “[g]ood faith deposits for others putting cash up on their behalf.” He claimed
5
that he and other partners were contributing funds to a lender on behalf of the
Aniols and Barbara. He also contended that he was a party to a general release
from liability for the River Gardens transaction and thus owed nothing for that
transaction.
Joann acknowledged that she had “constant phone calls” with appellant
during the years that she was trying to sell River Gardens to Barbara. She had
“practically daily conversations” with appellant, and the Aniols would send
documents to appellant “[d]aily, hourly practically sometimes.” The Aniols sent
appellant thousands of documents, and they received 900 faxes from appellant.
Joann acknowledged that the documents the Aniols sent to appellant were typical
for underwriting. She also testified that she did not know exactly how appellant
was going to be paid in the transaction, and she had lawyers reviewing the
transaction beginning in the fall of 2004.
The trial court charged the jury with the following application paragraph:
Now, if you find from the evidence beyond a reasonable doubt that in
Harris County, Texas, the defendant, Kevin Lavelle Kent, heretofore
on or about May 15, 2003 and continuing through March 13, 2008,
did then and there unlawfully, pursuant to one scheme or continuing
course of conduct, appropriate, by acquiring or otherwise exercise
[sic] control over property, namely, money, owned by Barbara Allen
or Tamara Allen or Larry Aniol or Joann Aniol, with the intent to
deprive Barbara Allen or Tamara Allen or Larry Aniol or Joann Aniol
of the property and the total value of the property appropriated was
over two hundred thousand dollars, then you will find the defendant
guilty of theft of property of the total value of over two hundred
thousand dollars, as charged in the indictment.
Appellant objected to the jury charge because it did not require the jury to agree
unanimously that the State proved beyond a reasonable doubt each element of the
offense, arguing that the Court of Criminal Appeals “considers each theft an
6
element of the offense in an aggregated case.” Appellant asked that each
underlying theft be listed by date, amount of money, and the owners.3 The trial
court overruled appellant’s objection.
The jury found appellant guilty, and the trial court assessed punishment at
sixty years’ confinement. The court also ordered appellant to pay restitution in the
amounts of $975,000 to Larry and Joann Aniol and $437,000 to Barbara and
Tamara Allen.
II. ERROR IN THE CHARGE
In his sole issue on appeal, appellant contends the trial court, over his
objection, submitted an erroneous jury charge with a disjunctive application
paragraph that allowed for a non-unanimous verdict. The State suggests that the
Court of Criminal Appeals has issued “contrary” opinions with “loose language,”
but the Court has not expressly ruled on the issue. The State also points to a
decision from this court suggesting unanimity is not required for aggregate theft.
We first review general principles regarding jury unanimity and theft. Then,
we look to the legislative intent of the aggregate theft statute and hold that jury
unanimity is required for the gravamina of the underlying statutory violations. We
also conclude that this court’s suggestion to the contrary in a securities fraud case
was non-binding dicta.
A. General Principles Regarding Jury Unanimity and Theft
The Texas Constitution and Code of Criminal Procedure require Texas juries
to reach a unanimous verdict in all felony prosecutions. Landrian v. State, 268
3
See Comm. on Pattern Jury Charges–Criminal, State Bar of Tex., Texas Criminal
Pattern Jury Charges: Property Crimes § D5.7 (2012) (listing each underlying theft offense in
an aggregate theft application paragraph with the date of appropriation, description of the
property, name of the owner, and value of the property; but not requiring unanimity as to each
underlying theft).
7
S.W.3d 532, 535 (Tex. Crim. App. 2008); see also Tex. Const. art. V, § 13; Tex.
Code Crim. Proc. Ann. art. 36.29. “Unanimity in this context means that each and
every juror agrees that the defendant committed the same, single, specific criminal
act.” Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005). The unanimity
requirement “ensures that the jury agrees on the factual elements underlying an
offense—it is more than mere agreement on a violation of a statute.” Francis v.
State, 36 S.W.3d 121, 125 (Tex. Crim. App. 2000). “The unanimity requirement is
undercut when a jury risks convicting the defendant on different acts, instead of
agreeing on the same act for a conviction.” Id.
But not all “acts” require unanimity. The jurors “must unanimously agree
on each ‘element’ of the crime in order to convict, but need not agree on all the
‘underlying brute facts [that] make up a particular element.’” Ngo, 175 S.W.3d at
746 (quoting Richardson v. United States, 526 U.S. 813, 817 (1999)). Unanimity
is required for “a fact that is a specific actus reus element of the crime,” but
unanimity is not required for a fact “that is ‘but the means’ to the commission of a
specific actus reus element.” See id. In other words, “unanimity is required on the
essential elements of the offense but is generally not required on the alternate
modes or means of commission.” Pizzo v. State, 235 S.W.3d 711, 714 (Tex. Crim.
App. 2007) (quotation omitted).
“In deciding what elements and facts a jury must unanimously agree on,
courts implement the legislative intent behind the penal provision.” Landrian, 268
S.W.3d at 536. By examining the “statutory language for legislative intent, we
inquire into the ‘gravamen’ of the offense.” Jourdan v. State, 428 S.W.3d 86, 95–
96 (Tex. Crim. App. 2014). One method or “general rule of thumb for making this
determination of legislative intent” is the “eighth-grade grammar” test. Stuhler v.
State, 218 S.W.3d 706, 718 (Tex. Crim. App. 2007); see also Jourdan, 428 S.W.3d
8
at 96. Under this test, we diagram the statutory text according to the rules of
grammar:
The essential elements of an offense are, at a minimum: (1) the
subject (the defendant); (2) the main verb; (3) the direct object if the
main verb requires a direct object (i.e., the offense is a result-oriented
crime); [(4)] the specific occasion; and [(5)] the requisite mental state.
Pizzo, 235 S.W.3d at 714–15 (quotation omitted). Generally, adverbial phrases are
not “elemental” for jury unanimity purposes. Jourdan, 428 S.W.3d at 96.
However, an adverbial phrase may “provide a level of specificity that arguably
serves to define discretely actionable units of prosecution even within the same
statutory subsection.” Id.
One situation giving rise to a jury unanimity problem, as relevant here, is
when the State puts on evidence of the “repetition of the same criminal act, but
with different results.” Ngo, 175 S.W.3d at 747; accord Cosio v. State, 353
S.W.3d 766, 771–72 (Tex. Crim. App. 2011). “For example, the State might
charge a defendant with stealing a credit card from Hong Truong and put on
evidence that he stole a credit card from Hong Truong and Hanh Nguyen.” Ngo,
175 S.W.3d at 747 n.33. Or as another example, “if the State charges the
defendant with the theft of one item and the evidence shows that the defendant had
in fact stolen two of the same items, the jury’s verdict may not be unanimous as to
which of the two items the defendant stole.” Cosio, 353 S.W.3d at 772.
The examples from Ngo and Cosio necessarily acknowledge that “[t]heft has
two gravamina: the property and ownership.” Johnson v. State, 364 S.W.3d 292,
297 (Tex. Crim. App. 2012).4 Accordingly, “the allowable unit of prosecution can
4
Although Johnson addressed the legal sufficiency of the evidence in light of a non-
statutory variance between the indictment and the proof at trial, the court reasoned that “[t]he
jury unanimity context may provide a useful framework for evaluating non-statutory variances
9
at least be derived from the combination of these elements: different property taken
from different persons are different thefts.” Id. “Of course multiple thefts could
be committed against the same person, e.g. different property stolen on different
days.” Id. at 297 n.33. Regarding ownership in particular, “[t]he specific name of
the owner is not an element of the offense of theft, but it is a non-statutory
description of the statutory, gravamen element of ownership.” Id. at 297; see also
Garza v. State, 344 S.W.3d 409, 414 (Tex. Crim. App. 2011) (in an aggregate theft
prosecution, although “the name of the owner is not a substantive element of theft,
the state is required to prove, beyond a reasonable doubt, that the person alleged in
the indictment as the owner is the same person shown by the evidence presented at
trial to be the owner”).
Accordingly, the description of the property and name of the owner are facts
that represent the specific actus reus of the elements of theft—these are elemental
facts for which jury unanimity is required. See Johnson, 364 S.W.3d at 297. We
must now determine whether a similar level of unanimity is required under the
aggregate theft statute: must jurors agree unanimously about what specific
property was appropriated from specific owners? We hold that such unanimity is
required.
B. Unanimity Required for Underlying Statutory Violations of Aggregate
Theft
Aggregate theft under Section 31.09 “consists of two or more incidents of
theft, [but] the statute makes them one offense.” Graves v. State, 795 S.W.2d 185,
187 (Tex. Crim. App. 1990). “Each individual theft and its elements aggregated
under Section 31.09 is an element of the single offense created by Section 31.09.”
because any issue involving a non-statutory variance can be converted into a jury unanimity
question.” 364 S.W.3d at 296.
10
State v. Weaver, 982 S.W.2d 892, 893 (Tex. Crim. App. 1998); accord Garza, 344
S.W.3d at 414; see also Dickens v. State, 981 S.W.2d 186, 188 (Tex. Crim. App.
1998) (“Aggravated theft is the sum of all its parts. A part is a completed theft
whose elements have all been proven.”).
Although the Court of Criminal Appeals has held that each underlying theft
and its elements are elements of aggregated theft, the court has never squarely
addressed the issue of whether each underlying theft is an “element” for purposes
of jury unanimity. See Weaver, 982 S.W.2d at 893 (holding that venue is proper in
any county in which any element of any of the underlying thefts occurred);
Dickens, 981 S.W.2d at 188 (holding that the pre-amendment punishment for theft
applied because the savings clause in the amended statute stated that an offense
was “committed before the effective date of the statute if any element of the
offense occurs before the effective date”; at least one underlying theft in this
aggregate theft case occurred before the effective date, and “each subsidiary
offense is a component of that one offense of aggregated theft”); see also Anderson
v. State, 322 S.W.3d 401, 408 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d)
(statute of limitations for aggregate theft begins to run when all the elements of the
last underlying theft have occurred because (1) each underlying theft and its
elements is an element of aggregate theft, (2) the limitations period begins to run
when the last theft is completed, and (3) a theft is completed when all the elements
have occurred). See generally Comm. on Pattern Jury Charges–Criminal, State
Bar of Tex., Texas Criminal Pattern Jury Charges: Property Crimes § D5.7, cmt.
at 138–39 (2012) (noting that “Texas case law is not clear” on the issue of whether
the jury must unanimously agree that the state proved each underlying theft, and
the Committee was split on the issue with a majority predicting that courts would
not require unanimity).
11
Accordingly, we now turn to the eighth-grade grammar test to determine
legislative intent. The difficulty of applying the test, however, is apparent from the
text of the statute, which is not worded like the vast majority of penal statutes.5
The statute provides: “When amounts are obtained in violation of this chapter
pursuant to one scheme or continuing course of conduct, whether from the same or
several sources, the conduct may be considered as one offense and the amounts
aggregated in determining the grade of the offense.” Tex. Penal Code Ann.
§ 31.09. Notably, the statute omits the subject of all penal statutes (i.e., the
defendant) and contains no mental state. Rather, the statute begins with the
subordinating conjunction “when,” which connects a dependent clause6 and
independent clause.7 The dependent clause contains a subject “amounts” with the
passive verb “are obtained,” followed by an adverbial phrase “in violation of this
chapter” and another adverbial phrase “pursuant to one scheme or continuing
course of conduct.” The dependent clause and independent clause are interrupted
by a conjunctive adverbial phrase “whether from the same or several sources.”
The independent clause does not appear to include elements of the aggregate theft
offense but merely describes the result of proving the offense—the jury, court,
State, or some other actor may “consider” the conduct as one offense and
“aggregate” the amounts to determine the grade.
Considerable linguistic acrobatics are required to fit this statute within the
confines of the eighth-grade grammar test. If we add the subject of all penal
statutes (i.e., the defendant), rephrase the statute in the active voice, and eliminate
5
Most statutes begin with the phrase “a person commits an offense if,” and include an
active verb, a direct object, and a mental state.
6
“When amounts are obtained in violation of this chapter pursuant to one scheme or
continuing course of conduct . . . .”
7
“. . . the conduct may be considered as one offense and the amounts aggregated in
determining the grade of the offense.”
12
the independent clause that does not serve to define elements of the offense, then
the statute appears as follows: “A person commits an offense if he obtains amounts
in violation of this chapter pursuant to one scheme or continuing course of
conduct, whether from the same or several sources.” But this rewriting does not
fully address the elements that the State must prove—namely, “violations of this
chapter.” Indeed, the indictment and jury charge in this case did not track the
language of the aggregate theft statute. The State did not allege that appellant
obtained amounts “in violation of this chapter.” Rather, the State alleged (and the
jury was charged) that appellant unlawfully appropriated property from its owners
with the intent to deprive the owners of the property, thus supplanting the language
of Section 31.09 with the general theft language in Section 31.03: “A person
commits an offense if he unlawfully appropriates property with intent to deprive
the owner of property.” Tex. Penal Code Ann. § 31.03. In other words, to
determine what must be proven in an aggregate theft case, we must look outside
Section 31.09 to the elements of the underlying theft statute found in Section
31.03.
Therefore, although “in violation of this chapter” is an adverbial phrase, it
appears to “provide a level of specificity that arguably serves to define discretely
actionable units of prosecution.” Jourdan, 428 S.W.3d at 96. Chapter 31 of the
Penal Code contains at least eleven different offenses,8 three of which assign
punishment classifications based on the value of what was stolen.9 Because we
must look to other sections of Chapter 31 to construct an offense under Section
31.09, it is likely the Legislature intended to incorporate the the gravamina of the
8
See Tex. Penal Code Ann. §§ 31.03, 31.04, 31.05, 31.07, 31.11, 31.12, 31.13, 31.14,
31.15, 31.16, 31.17.
9
See Tex. Penal Code Ann. §§ 31.03 (theft), 31.04 (theft of services), 31.16 (organized
retail theft).
13
underlying statutory violations for purposes of unanimity. As discussed above,
those gravamina for Section 31.03 are the property and owners: “different property
taken from different persons are different thefts.” Johnson, 364 S.W.3d at 297.
Turning to the specific words used in Section 31.09, the Legislature’s use of
the phrase “in violation of this chapter” suggests that unanimity is required for
each underlying theft. In Richardson v. United States, the United States Supreme
Court had to determine whether a jury needed to unanimously agree about the
underlying violations committed by a defendant to support a conviction under the
continuing criminal enterprise statute. See 526 U.S. at 815.10 The statute provides
that a person commits an offense if he, among other things, “violates any provision
of this subchapter or subchapter II of this chapter” (i.e., federal drug laws), and
“such violation is a part of a continuing series of violations of this subchapter or
subchapter II of this chapter.” See 21 U.S.C. § 848(c), quoted in Richardson, 526
U.S. at 815. The defendant urged, and the Court agreed, that a jury must
unanimously agree upon each “violation” that constitutes the series of violations.
526 U.S. at 824.
The Richardson Court, like courts in Texas, began with the statutory text to
determine legislative intent. See id. at 818. The Court reasoned that the word
“violations” has a “legal ring,” and a “‘violation’ is not simply an act or conduct; it
is an act or conduct that is contrary to law.” Id. The Court found the use of the
10
Richardson is persuasive because unanimity is required in federal criminal cases, and
federal courts follow a similar legislative-intent approach for determining what elements of a
statute require unanimity. See Jefferson v. State, 189 S.W.3d 305, 311 n.7 (Tex. Crim. App.
2006) (citing Richardson for the proposition that “courts must examine language of statute to
determine whether particular term in statute is an element, which requires juror unanimity, or an
underlying brute fact or means of committing an element which does not require juror
unanimity”); Ngo, 175 S.W.3d at 746–47 (“Richardson is precisely analogous to the present
case.”); see also Francis, 36 S.W.3d at 125 n.1 (federal opinions on unanimity are “helpful in
illustrating the error”).
14
word “violation” significant because “the criminal law ordinarily entrusts a jury
with determining whether alleged conduct ‘violates’ the law,” and a “federal
criminal jury must act unanimously when doing so.” Id. The Court’s holding that
each “violation” amounted to a separate element was “consistent with the tradition
of requiring juror unanimity where the issue is whether a defendant has engaged in
conduct that violates the law.” Id. at 818–19.
The Court also reasoned that the criminal enterprise statute acted as a
pseudo-enhancement statute. See id. at 822 (noting that the statute originally
began as an recidivist provision that provided for enhanced sentences). This aspect
of the statute further suggested that unanimity was required because for a prior
conviction to be used for enhancement, an earlier factfinder—“a unanimous federal
jury in the case of a federal crime”—must have “found that the defendant
committed the specific earlier crime.” Id. Not requiring unanimity for this type of
statute would, “in effect, impose punishment on a defendant for the underlying
crimes without any factfinder [i.e., unanimous jury] having found that the
defendant committed those crimes.” Id.
Similar to the continuing criminal enterprise statute, the primary purpose of
the aggregate theft statute is to impose a greater punishment on persons who have
committed multiple thefts pursuant to one scheme or continuing course of conduct,
allowing the state to aggregate those thefts for determining the grade of the
offense. See Tex. Penal Code Ann. § 31.09; see also Weaver, 982 S.W.2d at 894–
95 (noting that the “main purpose” of the 1974 addition of Section 31.09 was to
“increase the punishment range for a thief who commits various thefts” because
under the common law, a person who “stole x amount from various victims at
different times could not be as severely punished as a thief who stole the same
amount from one victim at one time even though the Legislature considered these
15
two thieves to be equally culpable”). The aggregate theft statute, therefore, acts as
a pseudo-enhancement statute. Not requiring unanimity as to the underlying thefts
would impose punishment on a defendant for the underlying thefts without a
unanimous jury having found beyond a reasonable doubt that the defendant
committed those thefts. See Richardson, 526 U.S. at 822. Accordingly,
“Richardson is precisely analogous to the present case.” Ngo, 175 S.W.3d at 747.
The State does not contend that the Legislature intended Section 31.09 to do
away with the practice of requiring unanimity for the two gravamina of theft.
After noting Section 31.09’s departure from the common law and the purpose of
increasing punishments, this court quoted from the practice commentary that “‘the
prosecution will have to allege and prove each separate ‘offense,’ but the value of
several items can now be combined for jurisdictional and punishment purposes.’”
State v. Graves, 775 S.W.2d 32, 33 (Tex. App.—Houston [14th Dist.] 1989)
(emphasis added) (quoting Searcy III and Patterson, Practice Commentary, Tex.
Penal Code Ann. § 31.09 (Vernon 1989)), aff’d 795 S.W.2d 185. But see Kellar v.
State, 108 S.W.3d 311, 313–14 (Tex. Crim. App. 2003) (indictment need not allege
the underlying thefts when the defendant’s constitutional right to sufficient notice
is otherwise satisfied through “actual notice of the specific instances of theft upon
which the State [is] basing its allegations” of aggregate theft). Further, the
aggregate theft statute’s departure from the common law undermines any
suggestion that there is a “history or tradition of treating individual criminal
‘violations’ as simply means toward the commission of a greater crime.” See
Richardson, 526 U.S. at 821.
Finally, we note that the Legislature is well aware of how to except certain
elements of penal statutes from the unanimity requirement when the elements
require proof that a defendant committed multiple underlying criminal offenses.
16
See Tex. Penal Code Ann. § 21.02 (“Continuous Sexual Abuse of Young Child or
Children” offense requires proof that the defendant “commits two or more acts of
sexual abuse, regardless of whether the acts of sexual abuse are committed against
one or more victims”; defining “act of sexual abuse” as “a violation of one or
more” of eight different penal laws; providing that “members of the jury are not
required to agree unanimously on which specific acts of sexual abuse were
committed”); Tex. Penal Code Ann. § 25.11 (“Continuous Violence Against the
Family” offense requires proof that the defendant “two or more times engages in
conduct that constitutes an offense under Section 22.01(a)(1) [i.e., assault] against
another person or persons whose relationship to or association with the defendant
is described by” various sections of the Family Code; providing that “members of
the jury are not required to agree unanimously on the specific conduct in which the
defendant engaged that constituted an offense under Section 22.01(a)(1)”). The
Legislature’s failure to expressly except the statutory violations underlying Section
31.09 from the unanimity requirement of the Texas Constitution indicates that the
Legislature intended to retain unanimity for the gravamina of the underlying theft
offenses. Cf. Ojo v. Farmers Group, Inc., 356 S.W.3d 421, 427 (Tex. 2011)
(Legislature’s providing expressly for a particular claim in one statute but not
another suggests that the Legislature did not intend to provide for that claim in the
latter statute; the Legislature was “well aware” of how to create such a claim).
In light of the plain text of the statute and the purpose for which it was
enacted, and consistent with the Court of Criminal Appeals’ treatment of each of
the underlying thefts as an “element” of aggregate theft, we conclude that the
Legislature intended for jurors to unanimously agree beyond a reasonable doubt
that a defendant committed the underlying statutory violations comprising a
Section 31.09 offense. Accordingly, when an aggregate theft offense is predicated
17
on Section 31.03, the jury must unanimously agree about what property was
unlawfully appropriated and who owned it.
C. Lehman and Murchison Do Not Require a Different Result
The State contends that the underlying statutory violations comprising a
Section 31.09 offense are not “elements” for which unanimity is required, but mere
“manner and means of committing the charged offense.” The State relies on,
Lehman v. State, 792 S.W.2d 82 (Tex. Crim. App. 1990), and Murchison v. State,
93 S.W.3d 239 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d). We address
each case in turn.
In Lehman, the defendant was indicted for aggregate theft, and the
indictment identified each of the six underlying thefts. 792 S.W.2d at 83. The
defendant argued that the jury charge erroneously “authorized the jury to convict if
it believed appellant had committed some, but not all, of the acts of theft alleged in
the indictment.” Id.11 Essentially, the defendant contended that if he is “charged
with stealing ‘widgets A, B, and C,’ he must be convicted of stealing ‘widgets A,
B, and C,’ and not for the ‘different’ offense of stealing widgets A and B.” Id. at
84. The court rejected that argument and agreed with the State that “if a defendant
is charged with stealing ‘A, B, and C, widgets of an aggregate value greater than
$750.00 but less than $20,000.00,’ the State need only prove that defendant stole
widgets worth between $750.000 and $20,000.00 from among widgets A, B, and
11
The trial court instructed the jury that it could convict the defendant if it believed
beyond a reasonable doubt that the Defendant committed one or more of these
thefts, if any, from the above named individuals, pursuant to one scheme and
continuing course of conduct, so long as the value of the money stolen, if any
were, was more than Seven Hundred Fifty Dollars and less than Twenty
Thousand Dollars.
Lehman v. State, 727 S.W.2d 656, 658 (Tex. App.—Houston [1st Dist.] 1987), aff’d 792 S.W.2d
82.
18
C.” Id. The court noted that the State may plead “alternative ‘manner and means’
in the conjunctive when proof of any one ‘manner or means’ will support a guilty
verdict,” and the court concluded, “Likewise, the State should be allowed to plead
all property which the evidence may ultimately prove stolen without thereby being
required to prove theft of any larger quantum of property than the statute at issue
required.” Id. at 84–85. In other words, pleading “extra” thefts does not require a
defendant’s acquittal when the State fails to prove one of those thefts that is not
essential to satisfying the value threshold of the grade of the offense alleged. See
id. at 84 (“[T]here is no reason that he should be acquitted if the evidence shows
him guilty of stealing enough of the ‘bundle’ to make him guilty of the offense
charged.”).
Lehman addressed the narrow question of whether the State must prove all
underlying thefts alleged in the indictment. It did not address whether, as relevant
here, the jurors would have to unanimously agree that the defendant stole “widgets
A and B” or “widgets B and C” even if all the jurors ultimately concluded that the
defendant stole widgets with sufficient value to convict the defendant of the grade
of the offense alleged. And Lehman did not address whether the jurors would have
to unanimously agree from whom the defendant stole property. “Lehman did not
clearly address unanimity.” Comm. on Pattern Jury Charges–Criminal, State Bar
of Tex., supra, § D5.7, cmt. at 139.
However, this court in Murchison read Lehman as addressing unanimity.
See Murchison, 93 S.W.3d at 260. In Murchison, the defendants were charged
with aggregate securities fraud under Tex. Rev. Civ. Stat. Ann. art. 581–29–2, a
statute that is nearly identical to the aggregate theft statute. See Murchison, 93
S.W.3d at 258. The defendants were indicted for “intentionally fail[ing] to
disclose at least one of the five Material Facts listed in the jury charge.” Id. at 257.
19
The underlying offense of securities fraud required proof that the defendants
engaged in fraud or a fraudulent practice by intentionally failing to disclose a
material fact. See Tex. Rev. Civ. Stat. Ann. art. 581–4(F), 581–29(C)(1);
Murchison, 93 S.W.3d at 258. This court held that the “Material Facts” listed in
the jury charge, which involved various omissions relating to the sale of
debentures, were “alternative manner and means of committing the same offense.”
Murchison, 93 S.W.3d at 258–59. Then, as “further support for our disposition,”
this court analogized to the aggregate theft statute in Lehman. See id. at 259–60.
The Murchison court reasoned, “If the jury need not unanimously agree as to
which of these six thefts were committed by an aggregate-theft defendant, then
there is no reason why the jury should be required to unanimously agree as to
which of the Material Facts the appellants intentionally failed to disclose.” Id. at
260.
However, the Material Facts identified in the jury charge in Murchison were
clearly manner and means of an offense such that they were the “underlying brute
facts” that satisfied the element of fraud. As in Murchison, we do not hold that the
jury was required to agree unanimously about how appellant unlawfully
appropriated money from its owners. When the State does not unnecessarily plead
a manner and means—such as theft “by deception”—then the jury is not required
to find that the defendant engaged in that specific manner and means. See Geick v.
State, 349 S.W.3d 542, 546–47 (Tex. Crim. App. 2011) (holding that the State was
bound to prove theft by deception, rather than theft alone, when it alleged the more
narrow offense by choosing to specifically plead one of five possible
circumstances that make consent ineffective).
Here, the State did not allege manner and means for the various underlying
thefts, and so the State was not limited to any particular manner and means. See id.
20
This case would be analogous to Murchison if, for example, appellant contended
that the jury needed to unanimously agree upon whether appellant unlawfully
appropriated money through deception because of his creating or confirming a
false impression about his ability to secure financing, his father’s involvement with
a lending institution, or the past deals he had completed and listed on Orlando
Mortgage’s website. Those are the types of “brute facts” for which the Murchison
appellants contended required jury unanimity. See Murchison, 93 S.W.3d at 248–
49 (describing the detailed factual allegations included in the jury charge as the
“material facts” that the defendants intentionally failed to disclose). However, we
hold that the jury must unanimously agree about the gravamina of theft: what was
stolen and from whom was it stolen. We do not hold that the jury must
unanimously agree about the brute facts comprising the method of unlawful
appropriation.
Murchison’s suggestion that Lehman addressed the issue of jury unanimity
was dictum because it was not necessary to the ultimate disposition. See State v.
Brabson, 966 S.W.2d 493, 498 (Tex. Crim. App. 1998) (describing dicta as being
“unnecessary to our ultimate disposition” of the case); Edwards v. Kaye, 9 S.W.3d
310, 314 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (same).
Murchison’s statement about Lehman, provided in “further support” of the court’s
disposition, was not “made very deliberately after mature consideration and for
future guidance in the conduct of litigation,” and thus is not judicial dictum that
need be followed. See Edwards, 9 S.W.3d at 314.
Because the jury charge in this case did not instruct the jurors that they
needed to unanimously agree about what property was stolen from which owners,
and all of the potential owners of the property were listed in the disjunctive, the
charge was erroneous. We now address whether appellant suffered some harm.
21
III. SOME HARM
The State agrees with appellant that he preserved error by objecting to the
charge. When error in the jury charge is preserved, as here, reversal is required if
the error is “‘calculated to injure the rights of the defendant,’ which means no more
than that there must be some harm to the accused from the error.” Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (quoting Tex. Code Crim.
Proc. Ann. art. 36.19). Reversal is required if we find “some actual, rather than
merely theoretical, harm from the error.” Dickey v. State, 22 S.W.3d 490, 492
(Tex. Crim. App. 1999). We must consider: “(1) the jury charge as a whole, (2)
the arguments of counsel, (3) the entirety of the evidence, and (4) other relevant
factors present in the record.” Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim.
App. 2013).
In Stuhler v. State, the Court of Criminal Appeals held that the defendant
suffered egregious harm 12 from a jury charge that allowed for a non-unanimous
verdict on the issue of whether a child suffered serious bodily injury or serious
mental injury. See 218 S.W.3d at 719–20. Although neither the trial court nor the
State stressed to the jury that it need not agree about which of the elemental facts
occurred, the State did argue to the jury that the evidence would support a verdict
based on either bodily or mental injury. Id. at 719. Because the charge itself did
not require unanimity as to the type of injury, the jury “could readily have
convicted the appellant without even substantively debating which of the two types
of injury she caused.” Id. Finally, the court reasoned that the State’s discussion of
evidence of both bodily and mental injury during closing argument “increased the
12
The egregious harm standard is “a high and difficult standard”; in contrast, the some
harm standard applied here is a “less-stringent standard.” Reeves, 420 S.W.3d at 816.
22
already substantial risk that the jury would not find it necessary to agree as to
which type of injury the appellant inflicted.” Id. at 720.
Similarly, in Ngo v. State, the Court of Criminal Appeals held that the
defendant suffered egregious harm when the State and trial court “misstated the
law at the very beginning of the case and at the very end” by telling the jury that it
need not unanimously agree about whether the defendant stole a credit card,
received a stolen credit card, or presented the credit card with the intent to obtain a
benefit fraudulently. 175 S.W.3d at 744, 751–52. “Furthermore, the evidence was
contested as appellant testified and denied committing any one of the three
offenses.” Id. at 751. The court noted that the jury charge error was not corrected
or ameliorated in another portion of the charge, and it was compounded by a
misleading statement concerning unanimity that was actually in the charge. Id. at
752.13 Based on the erroneous charge as a whole, the state of the evidence, and the
affirmative statements of the trial judge and State that the jury could return a non-
unanimous verdict, the court was unable to “determine that the jury was, in fact,
unanimous in finding appellant guilty of one specific credit-card-abuse offense.”
Id. at 752.
Here, the State told the jurors at the very beginning of the case, during voir
dire, that the jurors need not unanimously agree about who owned the property that
appellant stole:
13
This misleading statement was the “boilerplate” section of the charge dealing with the
selection of a jury foreman. It informed the jurors that the foreman would certify the jury’s
verdict “when you have unanimously agreed upon a verdict.” Ngo, 175 S.W.3d at 745. The
court reasoned that “this unanimity instruction is worse than saying nothing because it
affirmatively supports the prosecutor’s erroneous jury argument that the jurors need agree only
on their ultimate general ‘verdict’ of guilty, rather than specifying that they need to unanimously
agree on any one of the three specific criminal acts set out in the jury charge.” Id.
23
You can go back there as jurors and let’s say Juror No. 3 believes that
$200,000 was stolen from Barbara Allen, or over $200,000 was stolen
from Barbara Allen, and Juror 4 believes over $200,000 was stolen
from JoAnn Aniol and Larry Aniol. And they don’t have to agree on
that. They have to agree that the total amount of over $200,000 was
stolen from one of the complainants or a combination of the
complainants.
When the State asked the venire whether they agreed with that proposition,
multiple venire members agreed, including Juror No. 3, who ultimately was chosen
for the jury. The State’s incorrect statement of the law weighs in favor of finding
some harm. See Jourdan, 428 S.W.3d at 98 (State’s erroneous unanimity
argument “is obviously an important consideration in any analysis of egregious
harm”).
This misstatement of the law was never corrected. Although defense
counsel during closing argument encouraged the jurors to “go through these 20
transactions” and ask themselves whether the State proved “each and every one”
beyond a reasonable doubt, neither party informed the jurors that they needed to
unanimously agree about who owned the property. See Ngo, 175 S.W.3d at 751–
52 (uncorrected erroneous unanimity argument contributed to egregious harm).
Regarding the state of the evidence, the State contends on appeal that
appellant did not suffer any harm because “appellant’s evidence did not challenge
the verity of the individual transactions but rather the nature of the entire
relationship,” and “there was no meaningful argument that some of the transactions
were substantially different from the others.” We disagree.
Unlike the transactions involving the Allens, the Aniols were more careful
about documenting their agreement with appellant that any money would be held
in escrow. As discussed above, the State introduced multiple documents signed by
appellant acknowledging that the Aniols’ money would be held in escrow and
24
returned. The State introduced no such clear documentation pertaining to the
Allens. Although one of the 2003 loan commitment letters for the Allens
references the $200,000 buy-down payment and states it “will be refunded to the
borrow in its entirety,” the State and witnesses at trial treated this initial $200,000
as belonging to the Aniols. This $200,000 was the subject of a separate “personal
loan” agreement between the Aniols and Barbara. Thus, there was conflicting
evidence about who owned this money—the Aniols or the Allens. 14
During closing argument, the State acknowledged the differences in the
transactions involving the Aniols and the Allens, particularly based on appellant’s
assertion that the Aniols and Allens executed a “general release”:
They also talked about a general release. And if for some reason you
thought that document, Defense Exhibit No. 2, should wipe away any
criminal responsibility regarding the $975,000 that the Aniols loaned,
Defense Exhibit 1 sure doesn’t. Because this document was executed
by Barbara Allen, a loan [sic] on December 8th, 2005. And you know
after that date she gave, along with her daughter, over $200,000 to
Kevin Kent for nothing.
So, the State acknowledged that the jurors had before them different considerations
involving the Aniols’ transactions and the Allens’ transactions. Given that the
State argued for a conviction based on the “hotel” transaction with the Allens but
the escrow documentation was stronger for the Aniols, the risk of non-unanimity
was exacerbated. The State told the jurors further that they could conclude
$200,000 had been stolen from each set of owners: “He is guilty of stealing over
$200,000 from each of these people individually.” Accordingly, some of the jurors
could have concluded that appellant stole over $200,000 from the Aniols, while
14
Similarly, $125,000 was transferred from the Aniols to Barbara under a promissory
note, and then Barbara transferred it to appellant. But the Aniols included this payment as part
of the $975,000 Joann testified that appellant stole from the Aniols.
25
others could have concluded that he stole over $200,000 from the Allens, despite
his primary defensive posture that he earned all of the money.
Further, the State contends that the balance of the jury charge was correct,
noting that the jury was “instructed to certify their verdict only after they ‘have
unanimously agreed upon a verdict.’” However, this boilerplate language, located
in the part of the charge addressing selection of a jury foreman, did not ameliorate
the harm. In fact, it compounded the harm from the State’s argument that the
juror’s need not unanimously agree about from whom appellant stole over
$200,000. See Ngo, 175 S.W.3d at 745, 752.
Finally, we note that the danger of harm is especially present in this case
because the lack of unanimity concerned underlying discrete offenses that are
component parts of an aggregated offense. As in Richardson, there is an increased
“likelihood that treating violations simply as alternative means, by permitting a
jury to avoid discussion of the specific factual details of each violation, will cover
up wide disagreement among the jurors about just what the defendant did, or did
not, do.” Richardson, 526 U.S. at 819. Although present at least to some degree
whenever multiple means are at issue, there is a significant risk “that jurors, unless
required to focus upon specific factual detail, will fail to do so, simply concluding
from testimony, say, of bad reputation, that where there is smoke there must be
fire.” Id. Indeed, there was evidence of appellant’s other bad conduct in this case,
as the State introduced extraneous offense evidence of his alleged thefts from other
victims after the transactions involving the Aniols and Allens.
After reviewing the entire record, including the jury charge, the contested
issues and evidence, and the arguments of counsel, we “cannot determine that the
jury was, in fact, unanimous in finding” the elements of aggravated theft. See Ngo,
175 S.W.3d at 752. The evidence was contested, the State told the jury that
26
unanimity was not required, the State urged for a conviction based on evidence of
different underlying thefts (i.e., different elements of aggregate theft), and the jury
charge’s boilerplate language compounded the harm. See Stuhler, 218 S.W.3d at
719–20; Ngo, 175 S.W.3d at 751–52. The jury might well have reached a non-
unanimous verdict concerning the gravamina of the underlying thefts—in
particular, from whom appellant stole over $200,000. Appellant suffered some
actual, rather than theoretical, harm.
IV. CONCLUSION
Having sustained appellant’s sole issue on appeal, we reverse the trial
court’s judgment and remand for a new trial.
/s/ Sharon McCally
Justice
Panel consists of Justices Christopher, Jamison, and McCally.
Publish — Tex. R. App. P. 47.2(b).
27