Javier Salazar v. the State of Texas

NUMBER 13-22-00074-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JAVIER SALAZAR, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 197th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Silva and Peña
Memorandum Opinion by Chief Justice Contreras
A jury convicted appellant Javier Salazar of theft of property valued over $2,500
but less than $30,000, a state jail felony. See TEX. PENAL CODE ANN. § 31.03(e)(4)(A).
The State agreed to recommend a punishment of two years’ confinement in state jail
probated for two years and a $500 fine, and the trial court sentenced appellant
accordingly. By his sole issue, appellant contends that the evidence was “legally
insufficient to support a conviction of theft by deception” as alleged in the indictment.
Because the evidence in this case is legally insufficient to meet the requirements
delineated by the Texas Court of Criminal Appeals to support a conviction for theft by
deception, we agree with appellant and reverse and render a judgment of acquittal. See
Fernandez v. State, 479 S.W.3d 835, 838 (Tex. Crim. App. 2016); Geick v. State, 349
S.W.3d 542, 547–48 (Tex. Crim. App. 2011).
I. BACKGROUND 1
A grand jury indicted appellant in August 2019. The indictment alleged that on or
about November 24, 2016, appellant “unlawfully appropriate[d], by acquiring or otherwise
exercising control over, property, namely PALLETS CONTAINING GRASS, . . . from
DUDA SOD, the owner thereof, without the effective consent of the owner, namely by
DECEPTION, and with intent to deprive the owner of the property.” Trial began on
December 7, 2021.
Darrell Duda, manager of Duda Sod, testified that he has known appellant for “[a]
fairly long time.” He described that in 2015 appellant made a living by buying and selling
pallets of sod and “came to [Duda Sod] looking for grass supply” for his customers. He
stated that Duda Sod became appellant’s supplier. Duda Sod and appellant worked out
a system whereby appellant would purchase the sod on account and pay Duda Sod back
every two weeks or so. Duda testified that the system worked “fairly well” until appellant’s
payments slowed and eventually stopped in 2016. At that point, Duda Sod stopped
1 The State of Texas did not file a brief to assist us in the resolution of this appeal.
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supplying appellant but “still need[ed] to collect on what [appellant] still owe[d]” them for
past transactions. Duda noted that he had multiple conversations with appellant about
satisfying appellant’s payment obligations. A personal check for $3,200 from appellant to
Duda Sod dated November 24, 2016, was admitted into evidence. Duda testified that
appellant’s $3,200 check was made “in order to settle the pending invoices of previous
purchases,” and the sod purchased in those invoices had already been delivered. He
stated that his office manager, Maria Frances DeLaGarza, attempted to cash the check
a few times between 2016 and 2018, but there were insufficient funds in appellant’s
account to do so.
DeLaGarza testified that appellant had been a customer since 2015. She stated
that the company stopped selling sod to appellant in 2016 due to his outstanding invoices.
She informed the jury that she made multiple attempts to collect money, but appellant
never answered her calls, so she sent him a letter dated April 4, 2018, stating that
appellant had a past due balance of $3,200 and that failure to resolve the balance may
result in legal action. DeLaGarza testified that as of the time she sent the letter, Duda Sod
had sold no product to appellant for about two years. She described that the $3,200
amount listed in her letter referenced a partial amount owed from “several transactions.”
Seven sales receipts for sod dated from April to September 2016 were admitted at trial.
The total amount from the seven sales receipts totaled over $3,200, but Duda Sod only
sought to collect the amount stated on appellant’s check. When asked by the State
whether she was “deceived into believing that that check had funds,” DeLaGarza
answered affirmatively.
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David Robles, Chief Administrator at the Willacy County Sheriff’s Office (WCSO),
testified that on August 6, 2018, Duda arrived at WCSO to file a report. Duda informed
Robles that appellant had purchased sod with a bad check. Duda was “seeking
compensation” for the sod but he was unable to obtain the payments. Duda provided
Robles with the relevant check “and other documentation regarding the transaction of the
purchase” including: (1–2) an invoice and a cash receipt 2 from Duda Sod to appellant for
$3,200 dated March 29, 2018; (3) a Wells Fargo deposit form dated March 23, 2018; (4) a
notice from Wells Fargo showing that a $3,200 “deposited item” was returned unpaid on
March 30, 2018; and (5) DeLaGarza’s April 2018 letter to appellant. 3 Robles generated a
report and “forwarded it to [WCSO’s] Criminal Investigations Division.” When asked why
it took nearly two years from the date on the check to file a report with WCSO, Duda
stated that he made multiple attempts throughout the two years to cash the check, to no
avail, until he finally had to approach WCSO. The State and defense then closed.
The jury charge was read and included various definitions associated with the
offense of theft by deception. The application portion of the charge instructed the jury:
Now, bearing in mind the foregoing instructions, if you believe from the
evidence beyond a reasonable doubt that on or about November 24,
2016[,] . . . the [appellant] . . . did unlawfully appropriate, by acquiring or
otherwise exercising control over, property, namely PALLETS
CONTAINING GRASS, of the value of $2,500 OR MORE BUT LESS THAN
$30,000, from DUDA SOD, the owner thereof, without the effective consent
of the owner, namely by DECEPTION, and with the intent to deprive the
owner of the property, then you will find the defendant guilty of the offense
of theft and say so by your verdict, but if you do not so believe, or if you
2 The purpose of the cash receipt form for funds Duda Sod alleges were stolen is not clear from the
record.
3Appellant’s check and the other documents provided to Robles were admitted into evidence at
trial as defendant’s Exhibits 1–6.
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have a reasonable doubt thereof, you will acquit the defendant and say by
your verdict “Not Guilty.”
In its closing argument, the State asserted that the evidence to prove “deception” as
alleged in the indictment came from appellant’s having written a check to pay for $3,200
worth of acquired sod, which bounced because appellant lacked sufficient funds in his
bank account.
The jury deliberated and found appellant guilty as charged, and the trial court
sentenced appellant as described above. Appellant filed a motion for new trial on January
6, 2022, which the trial court denied on February 3, 2022. Appellant filed his timely notice
of appeal on February 22, 2022.
II. SUFFICIENCY OF THE EVIDENCE
By his sole issue, appellant argues that the evidence was legally insufficient to
support his conviction for theft by deception.
A. Standard of Review & Applicable Law
“In reviewing the sufficiency of the evidence to support a conviction, we consider
the evidence ‘in the light most favorable to the verdict’ to determine whether any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Delagarza v. State, 635 S.W.3d 716, 723 (Tex. App.—Corpus Christi–Edinburg
2021, pet. ref’d) (quoting Stahmann v. State, 602 S.W.3d 573, 577 (Tex. Crim. App.
2020)); see Jackson v. Virginia, 443 U.S. 307, 319 (1979). We consider both direct and
circumstantial evidence as well as all reasonable inferences that may be drawn from the
evidence and are not mere speculation. Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim.
App. 2017); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). “We resolve
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any evidentiary inconsistencies in favor of the verdict, keeping in mind that the factfinder
is the exclusive judge of the facts, the credibility of the witnesses, and the weight to give
their testimony.” Delagarza, 635 S.W.3d at 723 (first citing Walker v. State, 594 S.W.3d
330, 335 (Tex. Crim. App. 2020); and then citing TEX. CODE CRIM. PROC. ANN. art. 38.04).
“The sufficiency of the evidence is measured by comparing the evidence produced
at trial to ‘the essential elements of the offense as defined by the hypothetically correct
jury charge.’” Curlee v. State, 620 S.W.3d 767, 778 (Tex. Crim. App. 2021) (quoting Malik
v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). “A hypothetically correct jury
charge ‘accurately sets out the law, is authorized by the indictment, does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s
theories of liability, and adequately describes the particular offense for which the
defendant was tried.’” Id. (quoting Malik, 953 S.W.2d at 240).
A person commits the offense of theft “if he unlawfully appropriates property with
intent to deprive the owner of property.” TEX. PENAL CODE ANN. § 31.03(a). While
seemingly straightforward, “[t]he simplicity of the statutory elements of theft hides the
complexity of the overall scheme.” Geick, 349 S.W.3d at 546. Theft as defined in § 31.03
“constitutes a single offense superseding” what were once twelve distinct offenses. Id.
§ 31.02. Thus, under § 31.03, “there are three ways in which appropriation can be
unlawful, two ways to appropriate, three types of property, and three ways to deprive.”
Geick, 349 S.W.3d 546. Absent a notice-based motion to quash, the State need not
choose in its indictment between the various manners and means by which theft can be
committed. Id. Indeed, “[w]hen an indictment alleges theft in the most general of statutory
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terms . . . the hypothetically correct jury charge embraces any and every statutorily
defined alternative method of committing the offense that was fairly raised by the
evidence.” Taylor v. State, 450 S.W.3d 528, 535 (Tex. Crim. App. 2014). But “[w]hen the
State unnecessarily pleads a statutory definition that narrows the manner and means in
which an offense may be committed, that definition is ‘the law as authorized by the
indictment’ and thus the allegation must be proved beyond a reasonable doubt.” Geick,
349 S.W.3d 548. Accordingly, “[w]hen the State charges theft by way of deception, it is
bound to prove deception.” Fernandez, 479 S.W.3d at 838 (citing Geick, 349 S.W.3d
548).
Relevant here, a hypothetically correct jury charge would provide that appellant
committed the offense of theft “if he unlawfully appropriate[d] property with intent to
deprive the owner of property.” TEX. PENAL CODE ANN. § 31.03(a). Appropriation is
unlawful if “it is without the owner’s effective consent.” Id. § 31.03(b)(1). “Consent is not
effective if . . . induced by deception . . . .” Id. § 31.01(3). And “deception” has five
definitions under the statute, including three provided in the jury charge instructions in this
case:
(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 the 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;
....
(E) promising performance that is likely to affect the judgment of another
in the transaction and that the actor does not intend to perform or
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knows will not be performed, except that failure to perform the
promise in issue without other evidence of intent or knowledge is not
sufficient proof that the actor did not intend to perform or knew the
promise would not be performed.
See TEX. PENAL CODE ANN. § 31.01(1)(A), (B), (E).
No matter the definition, “[t]o prove theft by deception, the State must show that
the owner of the misappropriated property was induced to consent to its transfer because
of a deceptive act of the defendant.” Fernandez, 479 S.W.3d at 838 (citing Daugherty v.
State, 387 S.W.3d 654, 659 (Tex. Crim. App. 2013)). “That is, the defendant’s deceptive
act must impact the judgment of the property owner in the transaction. It follows, then,
that the deception must precede the consent given.” Id. (citing Daugherty, 387 S.W.3d at
659) (footnote omitted).
B. Analysis
The indictment charged appellant with theft, and specified it was done “by
deception.” The indictment thus “plead[ed] a statutory definition [of theft] that narrow[ed]
the manner and means in which [the] offense may be committed.” Geick, 349 S.W.3d at
548. The State was therefore required to prove appellant appropriated property by
deception beyond a reasonable doubt.
The State argued at trial that the relevant “deception” was appellant’s writing a bad
check for $3,200 to pay for sod previously purchased on account and delivered to
appellant’s clients. As appellant correctly argues, the purported deceptive act here
followed the alleged theft and thus cannot support a jury’s finding as to deception beyond
a reasonable doubt. See TEX. PENAL CODE ANN. § 31.01(1); Fernandez, 479 S.W.3d at
838; Daugherty, 387 S.W.3d at 658 (concluding in a case arising under the theft of
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services statute, TEX. PENAL CODE ANN. § 31.04, that “[w]hen the indictment alleges theft
of services by ‘deception’ through the issuance of a bad check, proof that the check was
issued after the performance of the services will not support a conviction for theft of
services”). There is no evidence in the record that the check in question “impact[ed] the
judgment” of Duda Sod when it first decided to sell sod to appellant on account. See
Fernandez, 479 S.W.3d at 838. In fact, Duda Sod stopped selling product to appellant
before appellant wrote the check, and it did not sell any sod to appellant after he wrote
the check. See id.Moreover, while the State raised no other theory of deception at trial nor filed a
brief on appeal directing us to other evidence of deception in the record, we must view
the evidence in a light favorable to the verdict to determine if the jury could have
nonetheless found deception beyond a reasonable doubt. See Delagarza, 635 S.W.3d at
723. Here, the only other evidence in the record of some potential deceptive act is
appellant’s failure to pay Duda Sod as per the parties’ arrangement. But the mere fact
that appellant failed to pay for the sod “is not sufficient proof that [appellant] did not intend
to” or knew he would not pay for the sod to support a finding of deception. See TEX. PENAL
CODE ANN. § 31.01(1)(E). We thus conclude that the evidence was legally insufficient to
find appellant guilty of theft by deception. See id.; Fernandez, 479 S.W.3d at 838; Geick,
349 S.W.3d at 548.
We sustain appellant’s sufficiency challenge and must therefore acquit. See Geick
v. State, 321 S.W.3d 706, 711 (Tex. App.—Houston [14th Dist.] 2010) (“Because the
State failed to prove that appellant appropriated the property by deception, the evidence
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is legally insufficient to support appellant’s theft by deception conviction.
Accordingly, . . . we must acquit.”), aff’d, 349 S.W.3d at 542; see also Fricks v. State, No.
13-20-00428-CR, 2022 WL 1669063, at *6 (Tex. App.—Corpus Christi–Edinburg May 26,
2022, no pet.) (mem. op., not designated for publication) (reversing and rendering
judgment acquitting appellant of theft because the State specified certain means of theft
in the indictment which it failed to prove).
III. CONCLUSION
We reverse the trial court’s judgment and render judgment acquitting appellant of
theft by deception.
DORI CONTRERAS
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
23rd day of March, 2023.
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