De La Garza v. State

762 S.W.2d 899, 1988 Tex. App. LEXIS 2903, 1988 WL 124190
CourtCourt of Appeals of Texas
DecidedNovember 23, 1988
DocketNo. C14-87-00099-CR
StatusPublished
Cited by1 cases

This text of 762 S.W.2d 899 (De La Garza v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
De La Garza v. State, 762 S.W.2d 899, 1988 Tex. App. LEXIS 2903, 1988 WL 124190 (Tex. Ct. App. 1988).

Opinion

OPINION

JUNELL, Justice.

Appellant was charged in a lengthy indictment with theft of money in the amount [901]*901of more than $20,000. The indictment contained eighteen paragraphs. The first seventeen paragraphs alleged separate incidents which were then aggregated in the eighteenth paragraph into one offense pursuant to the authority of Tex.Penal Code Ann. § 31.09 (Vernon 1974). Appellant pled not guilty. Trial was to a jury. At the conclusion of the trial, the first, third, ninth, and seventeenth paragraphs of the indictment were either abandoned by the state or eliminated by the granting of appellant’s motion for instructed verdict. The remaining allegations were submitted to the jury. The jury found appellant guilty of theft committed pursuant to one scheme or continuing course of conduct with an aggregate amount stolen in excess of $20,000, as charged in the indictment. The jury assessed appellant’s punishment at confinement in the Texas Department of Corrections for a term of fifteen years and a fine of $10,000.

Appellant challenges the sufficiency of the evidence to support his conviction and the trial court’s admission of evidence allegedly obtained as a result of an unlawful search and seizure. He also complains of other evidentiary rulings, as well as the prosecutor’s jury argument and his criticism of appellant’s trial counsel. We affirm.

Appellant owned and operated FMC Mortgage Company in Houston. Eleven complainants independently contacted him between July, 1983 and June, 1985 in an effort to obtain permanent financing for various projects. Appellant represented to each complainant that he had access to substantial funds and that he could either make the loan himself or obtain funding from his sources within a relatively short period of time. Appellant ordinarily would charge 1 percent of the amount of the loan as an initial fee, representing that if the loan was not made, the fee would be refunded except for $900 to cover appellant’s costs. Based on these representations, the complainants paid fees for appellant to obtain the loans. None of the loans alleged in the indictment was ever funded. Eight of the complainants never received any refund of the fees paid to appellant. The fees paid by those eight complainants ranged from $10,000 to $32,900 and totaled more than $190,000. One complainant, Mr. Ralph Durden, had paid fees totaling $474,-000 to appellant and received a refund of only $100,000. Another complainant, Susan Spaulding, received a refund of $4,500 and had paid fees totaling $16,500. Tony Mortezi, another complainant, was introduced to appellant by a broker named Roland Caerey. Mortezi paid appellant a fee of $22,873. When appellant failed and refused to refund any part of the fee, Caerey personally made a full refund to Mortezi because Caerey had taken Mortezi to appellant to secure the loan.

Appellant’s first point of error is that the evidence is insufficient to establish that appellant intended that the loans not be funded at the time he accepted fees from the complainants. Appellant contends that the evidence shows only that he did not return money after failing to perform a civil contract and that the evidence is insufficient to show that he intended to deceive and defraud complainants at the time he took their money.

The state contends that appellant stole the money paid for fees by deception, misrepresenting that he could obtain loans for complainants when he in fact never intended to do so.

The eleven complainants testified in great detail concerning their dealings and transactions with appellant. In some instances appellant represented he had loan commitments from third party institutions when in fact he had no such commitment. In one instance appellant had committed his own company, FMC Mortgage Company, to make a $1,645,000 loan. Appellant repeatedly caused loan closings to be delayed for a variety of reasons; and when the borrower, Mr. Jim Hunt, and his banker arrived unexpectedly at appellant’s office and confronted appellant, he admitted that FMC Mortgage Company could not [902]*902fund the loan but that the loan could be funded by a Mr. Michael Alburger. Mr. Hunt contacted Mr. Alburger and learned that Alburger had no knowledge of any such loan commitment.

It is not necessary to set out fully the testimony of all eleven complainants. The state in eighteen pages of its brief has accurately chronicled such testimony. Additionally, Mrs. Sharon Thompson and Miss Claudia Saxton testified at the trial. Mrs. Thompson testified that in the thirteen months that she worked at FMC Mortgage Company, from June of 1983 until August of 1984, she never knew of a single loan being funded. She further testified that she was responsible for writing the company checks and making deposits into the company bank account and that she never saw any evidence that the company had any source of funds other than the loan commitment fees being paid by the complainants or other loan applicants. Miss Saxton, who began working for FMC Mortgage Company while Mrs. Thompson was still in the office, and who continued to be so employed until April of 1985, testified that to her knowledge no loans were ever funded for any clients.

Appellant cites five cases in support of his contention that the evidence is insufficient to prove that appellant intended that the loans not be funded at the time he accepted fees from the complainants. Those five cases are: Phillips v. State, 640 S.W.2d 293 (Tex.Crim.App.1982); Peterson v. State, 645 S.W.2d 807 (Tex.Crim.App.1983); Cox v. State, 658 S.W.2d 668 (Tex. App.—Dallas 1983, pet. ref'd.); Wilson v. State, 663 S.W.2d 834 (Tex.Crim.App.1984); and Hesbrook v. State, 194 S.W.2d 260 (Tex.Crim.App.1946).

All of the cases relied on by appellant are distinguishable from the instant case. Except for the Wilson case, each of the cases relied upon by appellant involved only one transaction between the defendant and complainant. The Wilson case involved three purchases of grain by the defendant from the complainant. The defendant did not pay complainant for these three purchases. In our opinion Wilson does not support appellant’s argument. The three purchases were made within a ten day period of time and the evidence showed without dispute that the complainant had been selling grain to the defendant’s company for several years and had always been paid for the grain until these three specific sales in the fall of 1979. Other evidence showed clearly that the defendant’s business encountered financial difficulties because of poor management and lax financial control. On this evidence the Court of Criminal Appeals held the evidence was insufficient to show the grain was obtained by the defendant by deception.

Under Texas Penal Code Annotated section 31.01(2)(E) (Vernon 1974) deception means promising performance that the actor does not intend to perform or knows will not be performed.

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Bluebook (online)
762 S.W.2d 899, 1988 Tex. App. LEXIS 2903, 1988 WL 124190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/de-la-garza-v-state-texapp-1988.