Bogia, James Todd III v. State

• Court: Court of Appeals of Texas
• Decided: February 12, 2004
• Docket: 01-02-00950-CR
• Status: Published

Opinion

Opinion issued on February 12, 2004.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-00950-CR

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JAMES TODD BOGIA, III, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 895930

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MEMORANDUM OPINION

          A jury convicted appellant, James Todd Bogia, III, of aggregate first-degree felony theft of property over $200,000, and the trial court sentenced him to 25 years confinement and a $5,000 fine. On appeal, appellant contends that the trial court erred in refusing to (1) grant appellant’s motion for directed verdict because there was insufficient evidence of appellant’s intent and (2) instruct the jury that the amount appellant was charged with stealing from his employer should be offset by the value of the work that he performed for his employer. We affirm.

BACKGROUND

          Appellant, using the assumed name, identity, and educational qualifications of “Michael Wilting,” was employed as an environmental engineer by Air Liquide Corporation (AL). As part of his job responsibilities, appellant reviewed bids and awarded contracts to vendors for the remediation of AL’s unused lime ponds. While working for AL, appellant and his wife also formed three remediation companies. Appellant did not have an environmental engineering degree and his wife had no training or education as a remediation expert or as an engineer.

          Appellant wrote bid proposals to AL to perform remediation services at various sites. Although written by appellant, the bid proposals purported to come from employees of his companies. In violation of AL’s internal conflicts of interest policies and his employment contract, appellant did not disclose his interest in his companies to AL. Appellant, on behalf of AL, then awarded remediation contracts to his companies, and AL paid appellant in excess of $450,000 under these contracts. What work appellant did as an environmental engineer for AL was inadequate or had to be redone. Much of the work that appellant promised to do, and his companies were paid in advance to do, was never done at all. Appellant converted the monies paid to his companies under these contracts to his personal use.

SUFFICIENCY

          In his first point of error, appellant contends that the trial court erred in denying his motion for directed verdict because the evidence was legally and factually insufficient to establish appellant’s intent to commit theft.

Standard of Review

          Although appellant phrases his challenge to the trial court’s ruling on his motion for directed verdict as one of legal and factual sufficiency, the law is well-settled that a challenge on appeal to the denial of a motion for directed verdict is a challenge to the legal sufficiency, not the factual sufficiency of the evidence. See Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996); Turner v. State, 101 S.W.3d 750, 761 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). When evaluating the legal sufficiency of the evidence, an appellate court must view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003).

Theft

          The offense of theft occurs when a person unlawfully appropriates property with intent to deprive the owner of the property. Tex. Pen. Code Ann. § 31.03 (Vernon Supp. 2004). To “appropriate” means to acquire or otherwise exercise control over property. Tex. Pen. Code Ann. § 31.01(4)(B) (Vernon Supp. 2004). Appropriation of property is unlawful if it is “without the owner’s effective consent.” Tex. Pen. Code Ann. § 31.03(b)(1). Further, where “amounts are obtained [by theft] 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. Pen. Code Ann. § 31.09 (Vernon Supp. 2004). A theft offense is a felony of the first-degree if the value of the property stolen is $200,000 or more. See Tex. Pen. Code Ann. § 31.03(e)(7).

          Appellant argues that the evidence was insufficient to show that he had the requisite criminal intent to deprive AL of funds for two reasons. First, the evidence at trial established that he had made his best efforts to fulfill all of his contractual agreements with AL, as evidenced by his evaluation reports, and the State failed to present evidence showing the contrary. Second, although appellant admits that the dealings of his companies violated AL’s policies, these violations cannot be evidence of his criminal intent. Citing Wilson v. State, 663 S.W.2d 834, (Tex. Crim. App. 1984); Peterson v. State, 645 S.W.2d 807 (Tex. Crim. App. 1983); Phillips v. State, 640 S.W.2d 293 (Tex. Crim. App. 1982); and Cox v. State, 658 S.W.2d 668 (Tex. App.—Dallas 1983, pet. ref’d), appellant argues that these circumstances are merely evidence of a civil contractual dispute and the evidence in this case does not support a finding of criminal intent. We disagree.

           In each of the cited cases, the only evidence of “theft” was a failure to perform as contracted; there was no showing of additional evidence of deceptive actions or intent to deprive. Here, unlike in the cases cited by appellant, the record provides evidence of both appellant’s failure to contractually perform and deceptive conduct, not merely a failure to perform. The record shows that, when applying for a job with AL, appellant represented false qualifications by illegally assuming another person’s identity, complete with sufficient credentials to qualify for the environmental engineer position. Stephanie Payne, an environmental law attorney for AL and a director of the quality control group, testified that AL would not have hired appellant had it known that appellant did not even possess a bachelor’s degree.

          The record reflects that appellant violated AL’s company policy by creating fictitious companies to act as vendors for AL without disclosing his self-interest. Appellant took advantage of confidential information that he possessed to ensure that AL would award his companies contracts. The record revealed that appellant deprived other competing vendors of contracts by ensuring that his companies submitted the lowest bids.

          Several AL representatives testified that, if they had known that appellant lied about his identity, failed to hold an engineering degree, and failed to disclose connections with his companies, and had they known that appellant’s companies were inexperienced, they would not have initially hired him, or, hired his companies, and they would have recommended his immediate termination from AL.

          The record produced ample evidence of appellant’s intent to steal and deceive. The evidence revealed that appellant worked to gain AL’s trust as a prelude to asking for even more money, while performing inadequately or completely failing to perform. AL employees testified that AL had to invest additional resources to correct appellant’s work and to pay subcontractors purportedly already paid for by appellant’s companies.

          The testimony at trial revealed that appellant’s companies billed AL for additional monies, above and beyond the original proposal submitted to AL. Through his companies, appellant charged AL multiple times for work already invoiced. AL employees also testified that appellant’s check requests for down payments submitted before his companies ever began or completed work appeared unusual and abnormal for industry practices.

          By deceiving AL as to his qualifications, appellant caused AL and the environment harm. He violated environmental and safety regulations by covering up lime ponds with dirt instead of completing proper remediation work, hired unskilled laborers, and dumped thousands of gallons of water with a high pH level onto other properties and into ditches instead of disposing of the water properly.

          Accordingly, the State produced sufficient evidence showing that appellant obtained his position at AL by deception, and that, once obtained, appellant had the intent to deprive AL of its money. Any rational finder of fact could have found all the elements of the offense, including the requisite criminal intent, beyond a reasonable doubt. See Houston v. State, 663 S.W.2d 455, 456 (Tex. Crim. App. 1984). We find that the evidence was legally sufficient to support the jury’s verdict. Thus, the trial court properly denied appellant’s motion for directed verdict.

           We overrule appellant’s first point of error.

                                                   JURY CHARGE

          In his second point of error, appellant contends that the trial court erred in failing to instruct the jury that the amount appellant was charged with stealing from his employer should be offset by the value of the work that he performed for his employer.

Standard of Review When a complaint is raised on appeal regarding error in the trial court’s charge to the jury, a reviewing court must determine whether the charge was erroneous, and, if so, whether the error was harmful to the defendant. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).

The Requested Instruction

          To be entitled to the requested offset instruction, appellant must prove by a preponderance of the evidence any value he conferred upon AL. Tex. Pen. Code Ann. § 31.08(d) (Vernon 2003). Section 31.08(d) of the Texas Penal Code states, in pertinent part, as follows:

If the actor proves by a preponderance of the evidence that he gave consideration for or had a legal interest in the property . . . stolen, the amount of the consideration with the value of the interest so proven shall be deducted from the value of the property . . . ascertained under Subsection (a) . . . to determine the value for purposes of this chapter.

Id. (emphasis added).  

          Here, although appellant requested an offset instruction, he failed to introduce any evidence regarding the amount of value he conferred on AL. The record revealed that the “benefit” or work performed by appellant for AL actually harmed AL and caused AL to spend more money correcting appellant’s work. The record indicates that AL paid twice for some services. Further, although the record reveals that AL paid appellant and his companies a total of $451,342.33, the State only charged appellant with “theft over $200,000.” We find that appellant did not produce any evidence of any value conferred upon AL. Accordingly, we hold that the trial court did not err in denying appellant’s request for an offset value charge.

          We overrule appellant’s second point of error.

                                                   Conclusion

           We affirm the judgment of the trial court.

                                                             George C. Hanks, Jr.

                                                             Justice

Panel consists of Justices Taft, Nuchia, and Hanks.

Do not publish. Tex. R. App. P. 47.4