PD-1340-14 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS March 3, 2015 No. PD-1340-14 Transmitted 3/3/2015 10:16:15 AM Accepted 3/3/2015 10:27:24 AM ABEL ACOSTA In the CLERK Court of Criminal Appeals No. 14-13-00375-CR In the Court of Appeals for the Fourteenth District of Texas at Houston No. 1253665 th In the 174 District Court of Harris County, Texas KEVIN LAVELLE KENT Appellant V. THE STATE OF TEXAS Appellee STATE’S BRIEF ON DISCRETIONARY REVIEW
DEVON ANDERSON District Attorney Harris County, Texas
ERIC KUGLER Assistant District Attorney Harris County, Texas TBC No. 796910 kugler_eric@dao.hctx.net
KAYLINN WILLIFORD PAULA HARTMAN Assistant District Attorneys Harris County, Texas
1201 Franklin, Suite 600 Houston, Texas 77002 Tel.: 713-755-5826 FAX: 713-755-5809
Counsel for Appellee
ORAL ARGUMENT PERMITTED STATEMENT REGARDING ORAL ARGUMENT
This Court has permitted oral argument in this case.
IDENTIFICATION OF THE PARTIES
Counsel for the State:
Devon Anderson District Attorney of Harris County
Eric Kugler Assistant District Attorney on appeal
Kaylinn Williford; Paula Hartman Assistant District Attorneys at trial
Appellant or criminal defendant:
Kevin L. Kent
Counsel for Appellant:
James Pons Counsel on appeal
James Brooks; John Still Counsel at trial
Trial Judge:
Hon. Ruben Guerrero Presiding Judge TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT ................................................. 1
IDENTIFICATION OF THE PARTIES .................................................................... 1
INDEX OF AUTHORITIES ...................................................................................... 3
STATEMENT OF THE CASE................................................................................... 5
ISSUES PRESENTED ............................................................................................... 5
A. The court of appeals should not have reversed the trial court’s decision to reject the appellant’s proposed application paragraph because the paragraph was not authorized by the indictment and was an incorrect statement of the law. .......5 B. The court of appeals erred in holding that jurors must unanimously agree beyond a reasonable doubt on each underlying transaction used to comprise an aggregate theft charge. ...........................................................................................5 C. The court of appeals erred in finding that the appellant was harmed by any unanimity error in the jury charge because his defense was not predicated on isolating one transaction from another. ..................................................................5 STATEMENT OF FACTS ......................................................................................... 6
SUMMARY OF THE ARGUMENT ....................................................................... 14
ARGUMENT ........................................................................................................... 14
PRAYER .................................................................................................................. 29
CERTIFICATE OF SERVICE AND COMPLIANCE............................................. 30
2 INDEX OF AUTHORITIES
CASES
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g) ......................................26
Burrell v. State, 526 S.W.2d 799 (Tex. Crim. App. 1975)..............................................................19
Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011) ....................................................... 23, 26
Cada v. State, 334 S.W.3d 766 (Tex. Crim. App. 2011) ....................................................... 17, 19
Curry v. State, 30 S.W.3d 394 (Tex. Crim. App. 2000) ................................................................19
Francis v. State, 36 S.W.3d 121 (Tex. Crim. App. 2000) ................................................................22
Garza v. State, 344 S.W.3d 409 (Tex. Crim. App. 2011) ....................................................... 23, 24
Harrell v. State, 834 S.W.2d 540 (Tex. App.— Houston [14th Dist.] 1992, pet. ref’d) ...................................................................17
Jourdan v. State, 428 S.W.3d 86 (Tex. Crim. App. 2014) ................................................................19
Kent v. State, 447 S.W.3d 408 (Tex. App.— Houston [14th Dist.] 2014, pet. granted)...................................................... passim
Kitchens v. State, 823 S.W.2d 256 (Tex. Crim. App. 1991) ..............................................................17
Lehman v. State, 792 S.W.2d 82 (Tex. Crim. App. 1990) ................................................... 17, 18, 23
3 Murchison v. State, 93 S.W.3d 239 (Tex. App.— Houston [14th Dist.] 2002, pet. ref’d) ............................................................ 17, 18
Pizzo v. State, 235 S.W.3d 711 (Tex. Crim. App. 2007) ..............................................................19
Richardson v. United States, 526 U.S. 813 (1999) .............................................................................................20
Schad v. Arizona, 501 U.S. 624 (1991) ................................................................................ 22, 23, 24
Smith v. State, 298 S.W. 286 (Tex. Crim. App. 1927) ..................................................................19
State v. Weaver, 982 S.W.2d 892 (Tex. Crim. App. 1998)..............................................................25
STATUTES
21 U.S.C. § 848(c) ...................................................................................................20
TEX. PENAL CODE § 21.02 (West 2010) ...................................................................21
TEX. PENAL CODE § 25.11 (West 2010) ...................................................................21
TEX. PENAL CODE § 31.03 (West 2010) ...................................................................20
TEX. PENAL CODE § 31.09 (West 2010) ...................................................... 16, 20, 21
OTHER AUTHORITIES
Act of May 17, 2007, 80th Leg., ch. 593, § 1.17, 2007 Tex. Sess. Law Serv. Ch. 593 ........................................................................................................................21
Act of May 23, 1973, 63rd Leg., ch. 399, § 1, 1973 Tex. Sess. Law Serv. Ch. 39921
Act of May 31, 2009, 81st Leg., ch. 665, § 1, 2009 Tex. Sess. Law Serv. Ch. 665 21
4 TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
STATEMENT OF THE CASE
The appellant was charged with the aggregate theft of money from two
families over a five-year period (CR – 13). The jury found the appellant guilty,
and the trial court thereafter assessed punishment at 60 years in prison (CR – 615).
The court of appeals reversed the conviction and held that the jury was required to
unanimously agree on each individual transaction that comprised the aggregate
theft charge. Kent v. State, 447 S.W.3d 408 (Tex. App.—Houston [14th Dist.]
2014, pet. granted). This Court granted review.
ISSUES PRESENTED
A. The court of appeals should not have reversed the trial court’s decision to reject the appellant’s proposed application paragraph because the paragraph was not authorized by the indictment and was an incorrect statement of the law.
B. The court of appeals erred in holding that jurors must unanimously agree beyond a reasonable doubt on each underlying transaction used to comprise an aggregate theft charge.
C. The court of appeals erred in finding that the appellant was harmed by any unanimity error in the jury charge because his defense was not predicated on isolating one transaction from another.
5 STATEMENT OF FACTS
In 1981, JoAnn and Larry Aniol opened River Gardens in New Braunfels,
Texas; it was a 70-acre, full-time treatment facility for “handicapped mentally
retarded adults” with more than 250 employees (RR. V – 15-16). Larry was the
clinical psychologist while JoAnn was the business manager (RR. V – 17).
At a provider meeting in 2002, JoAnn told Marilyn Cochran that she was
very ill with a bone disease and wanted to sell River Gardens (RR. V – 17-18).
Cochran owned group homes in Texas and was interested in brokering commercial
deals for the transfers of such facilities (RR. V – 17). Cochran put the Aniols in
touch with a potential buyer named Barbara Allen (RR. VI – 38). Barbara and her
daughter Tamara Allen ran a similar facility in Brownsville and wanted to grow
their business (RR. VI – 35-37). The sales price for River Gardens was $19.5
million (RR. V – 21).
Cochran also put both the Allens and the Aniols in touch with the appellant,
a purported mortgage broker, who was supposed to find financing for the Allens
(RR. V – 19-20, 42) (RR. VI – 39, 139-140). Cochran claimed that she had done
some deals with the appellant in the past, but that was not true (RR. V – 27). The
Aniols paid Cochran a brokerage fee of $150,000 (RR. V – 27-28). After that,
Cochran was no longer involved in the transaction (RR. V – 28-29) (RR. VII – 36).
6 The appellant did business under several names, one of which was the
Orlando Mortgage Company allegedly based in Pearland, Texas (RR. V – 25, 32-
36) (RR. VI – 40) (RR. VII – 11). Another of the appellant’s companies was called
Distinguished Properties; it was also located at the same address in Pearland and
was allegedly a real estate development investment company (RR. V – 26).
The appellant’s website made it appear that Orlando Mortgage was a huge
company, but it was not (RR. VI – 40-41, 43). The appellant’s business address
was actually just a mailbox rental place (RR. V – 179) (RR. VI – 127-128). The
appellant had no physical office address and no employees at Orlando Mortgage
(RR. V – 179-182, 191). “Darrell Ellis” was listed as the director of the
corporation, but there was no evidence of any real person by that name (RR. VII –
13-14).
The appellant told the Allens that he could finance the entire transaction so
that they would not have to put up any money (RR. VI – 45, 48). He had one face-
to-face meeting with the Aniols, but the remainder of the business transaction was
handled by telephone and fax (RR. V – 21). And the appellant never met with the
Allens (RR. VI – 40).
The appellant told the Allens and the Aniols that his father was well-
connected with Texas One Credit and was willing to help the appellant add such a
large sale to his résumé (RR. V – 42-43) (RR. VI – 48-49). But the appellant’s
7 father was actually a flooring contractor, not a banker, and he was estranged from
his son at that time (RR. VI – 9-12, 25-26, 122). Furthermore, Texas One was not
available to issue a $50 million line of credit (RR. VI – 27-29).1 Nevertheless, the
appellant falsified communications with his father in order to trick the Aniols into
believing that his father and Texas One were supporting the transaction (RR. VI –
14, 16-17, 20) (RR. VII – 34, 85-86).
In February 2003, the appellant allegedly approved a loan package of $25
million for the transaction, but he offered to drop the interest rate in exchange for a
cash payment of $200,000 (RR. V – 44) (RR. VI – 54-55). The Aniols offered to
front that money to the Allens in order to facilitate the deal; so they sent the money
to the Allens, who in turn forwarded it to the appellant (RR. VI – 56-57). The
appellant told the Aniols that the money was going into escrow (RR. V – 44-45).
The appellant had no permission to spend that money on himself; rather, the money
was to be returned to the Aniols after the transaction (RR. V – 46-47).
Shortly thereafter, the appellant offered to drop the interest rate some more
for an additional payment of $100,000, and the Allens wired him that additional
money (RR. VI – 60-61, 71-72, 74). The appellant then requested $125,000 as a
“good faith” payment for “Ms. Carolyn and Ms. Sharon…the people at the bank
1 In June 2010, Primeway Federal Credit Union absorbed Texas One Credit Union (RR. VI – 21- 22). The appellant did have an account at Texas One at one time, but it was eventually closed by the credit union (RR. VI – 31).
8 who controlled all the loans.” (RR. VI – 74-75). But the appellant did not work
with anyone with either of those names (RR. VI – 137).
The appellant requested $369,528 as a “good faith deposit” from the Aniols
to encourage his father to cement his relationship with Texas One, and they wired
that money to Lawyer’s Title, which they believed to be an escrow account (RR. V
– 50-51). Shortly thereafter, JoAnn spoke with her brother, Tony Copp, who was
an investor (RR. V – 51). After speaking with Copp, JoAnn requested the
$369,528 back, and it was returned in September 2003 (RR. V – 52). The
appellant said, “See, I sent your money back, you can trust me. Let’s get this sale
complete. I have all the documents in place. And we’re almost there, we’re almost
there.” (RR. V – 52). The Aniols really wanted to sell the property due to JoAnn’s
illness, so they decided to press on with the appellant’s alleged deal despite their
misgivings (RR. V – 52-53).
In October 2003, the appellant sent a fax to the Aniols that stated: “I spoke
with my dad last night. He said send your deposit to Orlando Mortgage account.
It’s a business account. Not personal. It will be safe there.” (RR. V – 56). The
Aniols sent $300,000 to what they thought was the bank account for the appellant’s
father so that he could be instrumental in closing the loan (RR. V – 57, 66-67).
And in February 2004, the Aniols sent another $150,000 to the appellant as part of
the transaction (RR. V – 80, 88).
9 The appellant showed alleged commitment letters to the Allens and the
Aniols; however, he blacked out the names of the banks in the letters (RR. V – 57-
60, 79) (RR. VI –65-66) (RR. VII – 31). The blacked-out name was “Cameron
Credit Union.” (RR. VII – 77-78, 98-99). But the appellant admitted that he had
changed that name himself (RR. VIII – 71). The appellant claimed that “Carolyn”
with the loan committee was working on the deal, but the Aniols never met anyone
named Carolyn who worked with the appellant (RR. V – 82-83). When the Aniols
asked to speak with Carolyn, the appellant said, “Oh, no, you’re not supposed to.
You’re the seller.” (RR. V – 83) (RR. VI – 76).
The Aniols had already given the appellant $650,000 to facilitate the sale
when they decided to hire their own attorney to examine the transaction (RR. V –
93-94). The Aniols wrote a letter to the appellant and demanded that the money be
wired to their firm’s escrow account, but the appellant responded, “your money is
safe, it’s in an escrow account, don’t worry, you can trust me.” (RR. V – 95). The
appellant sent the Aniols an escrow agreement on August 3, 2004, which somewhat
allayed their concerns (RR. V – 100-101). The escrow agreement implied that
Texas One Credit Union was the lending institution (RR. V – 104-106).
By that point, the Aniols had transferred to the appellant $200,000 to buy
down the interest rate, $300,000 for reserve debt service, and $150,000 for
additional debt service (RR. V – 111-112). The appellant was not allowed to spend
10 any of that money on his personal items (RR. V – 88, 101, 109). And the Aniols
were supposed to receive that money back at the end of closing (RR. V – 88, 96,
162) (St. Ex. 283). In fact, the appellant guaranteed in writing that the Aniols
would receive back the $650,000 that they had advanced for the closing (RR. V –
106-107). But the deal never closed (RR. V – 107).
In May 2005, the appellant asked for an additional $200,000 for debt service
and stated that his father would be sending $820,962 to support the loan (RR. V –
114-116). The Aniols then sent him that additional $200,000 (RR. V – 116). In
November 2005, the appellant volunteered to put up an additional $350,000 toward
the deal if the Aniols would give an additional $200,000 (RR. V – 119-120). When
she received that fax, JoAnn was so disgusted that she wanted to scream (RR. V –
120).
On December 7, 2005, the Aniols called the appellant and told him that the
deal was over, that the sale would not go through, and that he was to return their
money (RR. V – 120-123). The appellant said, “okay, fine, I’ll go ahead and I’ll
call my bank and get that wiring sent over to you.” (RR. V – 123). But the Aniols
never received any of their money back (RR. V – 107, 123) (RR. VII – 50). The
appellant employed numerous delaying tactics and even offered to buy River
Gardens himself (RR. V – 124-126). The total loss to the Aniols was $975,000
(RR. V – 130) (RR. VI – 82) (RR. VII – 9).
11 When the Aniols dropped out of the transaction, the appellant contacted
Barbara Allen and told her that she should refocus on hotels (RR. VI – 81-82). He
told her that he had returned all of the money to the Aniols (RR. VI – 82-83). He
also told her that Orlando Mortgage could give her a $25 million line of credit, but
that she had to continue putting up money as “good faith debt service” (RR. VI –
81, 83, 86, 89). From March 2006 through March 2008, the Allens gave the
appellant an additional $337,000 (RR. VI – 83-84). But the appellant never closed
on a hotel deal (RR. VI – 90-92). And the appellant did not have permission to
spend that money on himself (RR. VI – 91, 108).
Eventually, Barbara acted on her own and put $50,000 earnest money down
toward the purchase of a hotel in McAllen, Texas (RR. VI – 91-93). When she
informed the appellant of this, he became enraged (RR. VI – 94). The Allens had
had enough and sent a demand letter to the appellant in May 2008 for the return of
their $488,000 (RR. VI – 103-105) (RR. VII – 10) (St. Ex. 62). But the appellant
never returned any of the money (RR. VI – 108) (RR. VII – 50).
The appellant did not have $19 million in assets to secure a loan sufficient to
purchase River Gardens (RR. VI – 162-163). Instead of depositing the money
received from the Allens and the Aniols into an escrow account, he deposited the
money into his personal accounts and spent the money on himself (RR. VII – 21-
22, 109-111, 115-126). He spent the stolen money on football paraphernalia,
12 sports tickets and memorabilia, a Lincoln Navigator, a BMW, jewelry, furniture,
and other personal expenses (RR. VI – 141, 143-148, 152-161) (RR. VII – 40-42,
129-135) (RR. VIII – 118, 157-166).
The appellant had numerous houses during the time of the scam, and he
spent most of his time at home (RR. VI – 127-136, 142-143). He would watch
television, play videogames, and shop on eBay (RR. VI – 142-143, 178-179). The
appellant was married, but he also had a girlfriend during this time (RR. VI – 178).
The appellant testified in his own defense that he fabricated documents and
lied to both the Allens and the Aniols in order to keep his three partners secret (RR.
VIII – 65). But he could only remember the first name of one of his partners, and
that alleged person never testified (RR. VIII – 65-66). He also could not remember
the names of anyone he worked with at the alleged “backup” lending institution
(RR. VIII – 88-89). Likewise, he did not know the whereabouts or contact
information for any of the alleged shareholders in his various corporations (RR.
VIII – 96-97, 102-105). He stole money from several other victims related to
refinancing scams before he was finally arrested by the authorities (RR. VIII –
108-117, 146-149, 189-190) (RR. IX – 9-27, 36-38). Nevertheless, the appellant
continued to solicit and lie to prospective clients well after he was arrested and up
until four months prior to the trial of the case (RR. VIII – 122-125).
13 SUMMARY OF THE ARGUMENT
The court of appeals held that the trial court erred in failing to give the
appellant’s requested jury instruction, which attempted to identify each separate
transaction in the aggregate theft and to require unanimity on each one. But the
requested instruction was incorrect because it was phrased in the conjunctive.
Furthermore, such unanimity was not required because aggregate theft is
considered to be one offense. Finally, the appellant was not harmed, either
egregiously or otherwise, because his defense did not depend on separating and
defeating each individual transaction.
ARGUMENT
The appellant was charged with aggregate theft by “acquiring and otherwise
exercising control over property, namely, MONEY, owned by Barbara Allen and
Tamara Allen and Larry Aniol and Joann Aniol, hereafter styled the Complainant,
with the intent to deprive the Complainant of the property and the total value of the
property appropriated was over two hundred thousand dollars.” (CR – 13). Any
individual instances of theft were not specifically pled in the indictment because it
was alleged that the appellant stole from the four complainants “pursuant to one
scheme and continuing course of conduct” from May 15, 2003 through March 13,
2008 (CR – 13).
14 At the end of the guilt stage of trial, the appellant objected to the application
paragraphs in the jury charge based on due process and due course of law “because
they do not require the jury to agree unanimously that the State prove beyond a
reasonable doubt each element of the offense.” (RR. IX – 50). Specifically, the
appellant requested that the trial court instruct the jury as follows:
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 exercising control of the property, namely, money as follows….$200,000 from Larry and JoAnn Aniol deposited May 20, 2003; $100,000 from Barbara Allen deposited June 24, 2003; $125,000…$74,000 deposited March 17 of ‘06 from Barbara Allen; $10,000 deposited September 8, 2006, from Barbara Allen; $50,000 deposited October 20, ‘00 from Barbara Allen; $50,000 deposited November 30 of ‘06 from Barbara Allen; $15,000 deposited April 30, ‘07 from Barbara Allen; $15,000 deposited May 30, ‘07 from Barbara Allen; $30,000 deposited July 27 of ‘07 Barbara Allen; $13,000 deposited September 28 of ‘07 from Barbara Allen; $40,000 deposited December 30, ‘07 from Barbara Allen; $10,000 deposited January 11, ‘08 from Barbara Allen; $5,000 deposited February 28, ‘08 from Barbara Allen; $25,000 deposited February 28th of ‘08 from Barbara Allen ‘May 14, ‘03 $200,000 from Larry and JoAnn Aniol – excuse me – October 29, ‘04, $300,000 from Larry and JoAnn Aniol; February 24, ‘04, $150,000 from Larry and JoAnn Aniol; and May 20, ‘05, $200,000 from Larry and JoAnn Aniol, with the intent to deprive Barbara Allen and Tamra Allen and Larry Aniol and JoAnn Aniol of the property total, and the total value of the property appropriated was over $200,000, then you will find the defendant guilty as charged in the indictment.
(RR. IX – 50-52). The prosecutor responded that the Penal Code allows the
aggregation of theft charges and that the jury was not required to agree on the
15 specific transactions as long as they found that they added up to over $200,000
(RR. IX – 52).
The trial court agreed with the prosecutor, and the jury was charged on
aggregate theft (RR. IX – 53) (CR – 607). Specifically, the jury was instructed that
“When 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.” (CR – 606-607). The application paragraph tracked
the indictment, albeit with the victims listed in the disjunctive, without attempting
to further break down the appellant’s scheme or continuing course of conduct into
separate transactions (CR – 606-607). Finally, the jurors were instructed to certify
their verdict only after they had “unanimously agreed upon a verdict,” and they did
reach a unanimous verdict (CR – 610, 612).
When amounts are “obtained in violation of this [theft] 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 § 31.09 (West 2010)
(emphasis added). Furthermore, where an indictment charges an individual with
the appropriation of property in an aggregate amount pursuant to one scheme or
continuous course of conduct, the State is not required to prove each individual
appropriation; rather, it must prove theft of property described in the indictment in
16 an amount sufficient to satisfy the jurisdictional requirement of its pleading. See
Lehman v. State, 792 S.W.2d 82, 83-85 (Tex. Crim. App. 1990); Harrell v. State,
834 S.W.2d 540, 543 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d) (“It is
sufficient if the State shows enough of the property was stolen to meet the
aggregated value allegation.”).
Under Texas law, the State may plead in the conjunctive and charge in the
disjunctive. See Cada v. State, 334 S.W.3d 766, 771 (Tex. Crim. App. 2011)
(citing Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991)).
Furthermore, because the individual transactions in an aggregate theft are
essentially alternative manners and means of committing the charged offense, the
trial court can properly instruct the jury in the disjunctive. See Murchison v. State,
93 S.W.3d 239, 257–58 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d)
(“Because it is proper to charge the jury in the disjunctive as to multiple manner
and means for the commission of a single offense, we conclude the jury charge in
this case did not violate appellants’ right to a unanimous verdict”); see also
Lehman, 792 S.W.2d at 84-85.
The court of appeals in the present case distinguished this Court’s Lehman
opinion by stating that it “did not address whether the jurors would have to
unanimously agree from whom the defendant stole property.” Kent, 447 S.W.3d at
420. And it further distinguished its own Murchison opinion by stating that the
17 court’s “suggestion that Lehman addressed the issue of jury unanimity was dictum
because it was not necessary to the ultimate disposition.” Id., 447 S.W.3d at 421.
But the decision of the trial court to reject the appellant’s proposed jury instruction
in this case flowed naturally from both Lehman and Murchison.
The trial court properly refused to instruct the jurors as requested by the
appellant that they were required to acquit if they did not find beyond a reasonable
doubt that the appellant stole on “October 29, ‘04, $300,000 from Larry and JoAnn
Aniol; February 24, ‘04, $150,000 from Larry and JoAnn Aniol; and May 20, ‘05,
$200,000 from Larry and JoAnn Aniol.” (RR. IX – 51) (emphasis added). Lehman
explicitly does not require such proof because either the October 29 allegation or
the May 20 allegation would have been sufficient by themselves to reach the
statutory minimum; the State was not required to prove both. Lehman, 792 S.W.2d
at 84-85 (“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 requires.”). Furthermore, the
trial court followed the language of Murchison to the letter. See Murchison, 93
S.W.3d at 257–58 (“it is proper to charge the jury in the disjunctive as to multiple
manner and means for the commission of a single offense…”).
Under the court of appeals ruling, prosecutors would no longer have control
over how to define the transactions that form the basis of an aggregate theft charge,
18 and there would be an opportunity for substantial mischief during the charge
conference. The appellant’s proposed instruction would have inserted numerous
instances of conduct that were not pled in the indictment (RR. IX – 50-52). But
the “law as authorized by the indictment” consists of the statutory elements of the
offense as those elements are modified by the indictment, and the State is required
to prove that the defendant committed the alleged crime using that specific
statutory manner and means. See Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim.
App. 2000); Cada, 334 S.W.3d at 773–74. Prosecutors have been warned by this
Court for decades not to plead unnecessary details or be forced to prove them
beyond a reasonable doubt. Burrell v. State, 526 S.W.2d 799, 802 (Tex. Crim.
App. 1975) (citing Smith v. State, 298 S.W. 286 (Tex. Crim. App. 1927)). But
allowing defendants to insert additional elements that were not pled in the
indictment and after the evidence has been presented would eviscerate that rule.
Moreover, it would encourage defendants to creatively spin the facts into as many
separate transactions as possible in order to confuse and overburden the jurors.
The court of appeals used the grammatical statutory analysis from Pizzo v.
State, 235 S.W.3d 711 (Tex. Crim. App. 2007), to dissect Section 31.09. Kent, 447
S.W.3d at 416. It then cited Jourdan v. State, 428 S.W.3d 86, 96 (Tex. Crim. App.
2014), for the proposition that the phrase “in violation of this chapter” from
Section 31.09 was an adverbial phrase that represented “discretely actionable units
19 of prosecution.” Kent, 447 S.W.3d at 417. But this Court has explicitly stated that
“Ordinarily, we have not regarded adverbial phrases as ‘elemental’ for jury
unanimity purposes.” Jourdan, 428 S.W.3d at 96. And making the present case an
exception to that rule subverts the legislative intent in creating “one offense,”
especially when all of the property was taken under the same statutory section.
TEX. PENAL CODE § 31.09 (West 2010). As charged in the indictment, all of the
money obtained from the Allens and the Aniols was a result of theft under Section
31.03 (CR – 13). TEX. PENAL CODE § 31.03 (West 2010) (“A person commits an
offense if he unlawfully appropriates property with intent to deprive the owner of
property.”). Thus, there was no concern with joining separate statutory offenses
under one umbrella offense; they all fell under the same statute.
The court of appeals cited Richardson v. United States, 526 U.S. 813, 817
(1999), for the proposition that the federal continuing criminal enterprise statute
treats each violation as a separate element requiring unanimity. Kent, 447 S.W.3d
at 418. The statute at issue in Richardson provided that a person commits an
offense if he “violates any provision of this subchapter or subchapter II of this
chapter,” and that “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) (emphasis
added); Richardson, 526 U.S. at 815. But Section 31.09 does not use the term
“series of violations.” Rather, it provides for an offense when amounts are
20 obtained “in violation” of the theft chapter. TEX. PENAL CODE § 31.09 (West
2010). Thus, unlike Section 848(c), the text of Section 31.09 shows a Legislative
intent to treat the “scheme or continuing course of conduct” as the culpable
criminal behavior rather than each individual transaction used to prove the
existence of that scheme or course of conduct.
The court of appeals stated 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.” Kent, 447 S.W.3d at 419 (citing TEX. PENAL CODE §§ 21.02 and 25.11
(West 2010)). But Section 21.02, dealing with the continuous sexual abuse of a
child, was created in 2007. Act of May 17, 2007, 80th Leg., ch. 593, § 1.17, 2007
Tex. Sess. Law Serv. Ch. 593. And Section 25.11, dealing with continuous family
violence, was created in 2009. Act of May 31, 2009, 81st Leg., ch. 665, § 1, 2009
Tex. Sess. Law Serv. Ch. 665. Whereas the aggregate theft statute has been in
existence since at least 1973. Act of May 23, 1973, 63rd Leg., ch. 399, § 1, 1973
Tex. Sess. Law Serv. Ch. 399. Moreover, the nature of the recent continuous
offenses, which allow the combination of offenses across several chapters and only
under specific conditions, do not lend themselves to the same grammatical pattern
as Section 31.09, which is a blanket combination of all theft offenses. Compare
TEX. PENAL CODE §§ 21.02 and 25.11 (West 2010) with TEX. PENAL CODE § 31.03
21 (West 2010). Thus, no clear Legislative intent may be inferred from the fact that
the 80th and 81st Legislatures did not follow the grammatical lead of the 63rd
Legislature, which passed the aggregate theft statute more than three decades
earlier.
Interpreting Section 31.09 to make each individual transaction a separate
element of the offense is an unworkable and unsound public policy. Complex
thefts often involve numerous transactions. And in today’s world of electronic
finance, it can be very challenging to define where one transaction begins and
another ends. In the present case, the appellant refunded money to his victims at
times to build their confidence in him (RR. V – 52). But because money is
fungible, such transactions further complicate the determination of which
transactions were actually refunded. Moreover, an aggregate theft involving
numerous amounts from numerous victims, such as a typical Ponzi scheme, would
create such a lengthy jury charge that jurors would be overwhelmed at the task of
sorting through it all.
Unlike Francis v. State, 36 S.W.3d 121 (Tex. Crim. App. 2000) , the present
case did not involve multiple separate offenses. Rather, it was one ongoing offense
of aggregate theft committed pursuant to one scheme or continuing course of
conduct. And unlike Schad v. Arizona, 501 U.S. 624 (1991), it did not involve
alternative and incompatible methods of committing the same offense. Rather, the
22 offense itself was composed of numerous consistent transactions which combined
to satisfy the statutory elements. Thus, the jury was properly instructed to be
unanimous with regard to that one offense (CR – 610). Furthermore, even if an
additional unanimity instruction were required, the appellant’s proposed instruction
was clearly wrong when it conjoined all of the separate transactions and required a
guilty verdict on each. Compare (RR. IX – 50-52) with Lehman, 792 S.W.2d at 84-
85. Therefore, the court of appeals erred in holding otherwise.
The appellant claims that this Court has already decided the issue in this
case. (App’nt Resp. PDR 3-7). He cites Byrd v. State, 336 S.W.3d 242, 250-51
(Tex. Crim. App. 2011); Garza v. State, 344 S.W.3d 409 (Tex. Crim. App. 2011);
and Schad in support of this argument. But those cases are not helpful.
In Byrd, the defendant was charged with shoplifting from the owner, “Mike
Morales,” but at trial, the State proved that Wal-Mart owned the property and
Morales was never mentioned. Byrd, 336 S.W.3d at 244. This Court held that the
evidence was insufficient to sustain the conviction because the State was required
to prove that the owner as shown by the evidence was the same as the owner
alleged in the charging instrument. Id., 336 S.W.3d at 252-253. This Court did,
however, recognize that the name of the owner was not a substantive element of
the offense of theft. Byrd, 336 S.W.3d at 251.
23 In Schad, the defendant was charged with first-degree murder under
alternate theories of premeditated murder and felony-murder based on robbery. On
appeal, Schad argued that his conviction under instructions that did not require the
jury to agree on one of the alternative theories of premeditated and felony murder
was unconstitutional. Schad, 501 U.S. at 630. A plurality of the Supreme Court
rejected Schad’s argument, holding that there is no constitutional requirement that
the jury agree on a single means of committing an offense. Id., 501 U.S. at 631.
The Court noted, however, that there is a point at which the alternative means of
committing a crime are so distinct as to constitute separate offenses. Id., 501 U.S.
at 633-34. Declining to create a bright-line test, the plurality determined that the
issue would be resolved by analyzing how offenses have been defined historically
and in wide practice. Id., 501 U.S. at 638. The Court observed that the state
legislature’s definition of the elements of the offense is usually dispositive. Id., 501
U.S. at 639.
Finally, Garza was a software technician at a private school who over the
course of several years had been faking repairs on the students’ laptop computers
and then billing Hewlett Packard for those alleged repairs. Garza, 344 S.W.3d at
411. He was charged and found guilty of aggregated theft. On appeal, Garza
claimed that the evidence was insufficient because while the alleged victim,
Dennis Leahy, was an employee of Hewlett Packard at the time of the trial, he was
24 not such an employee at the time of the theft and therefore could not be the owner
of the property. Id., 344 S.W.3d at 412. This Court rejected Garza’s argument,
holding that Leahy was a special owner and was competent to attest to the value of
the stolen property, even though he was not employed by Hewlett Packard at the
time of many of the alleged thefts. Id., 344 S.W.3d at 414.
In an apparent non sequitur, and contrary to Lehman, the Garza court also
stated that “Each individual theft is an element of the aggregated theft described by
§ 31.09.” Id. That announcement only makes sense when considered in light of its
source in the citation, namely, State v. Weaver, 982 S.W.2d 892 (Tex. Crim. App.
1998). Weaver was accused of aggregate theft in Harris County and claimed that
the constituent thefts that occurred outside Harris County must be severed from the
charge. Weaver, 982 S.W.2d at 893. This Court disagreed, stating: “Section 31.09
clearly provides that several thefts ‘pursuant to one scheme or continuing course of
conduct’ may be aggregated and ‘considered as one offense.’ Each individual theft
and its elements aggregated under Section 31.09 is an element of the single offense
created by Section 31.09.” Id. (footnote omitted). That was the source of the
puzzling language in Lehman. But the Weaver court went further than that,
holding that “Section 31.09 creates one offense for purposes of severance,
jurisdiction, punishment and limitations…[and] venue.” Id., 982 S.W.2d at 894.
25 Unlike Byrd, the present case was an aggregate theft committed pursuant to
one scheme or continuing course of conduct; furthermore, the names of the alleged
owners were repeatedly mentioned during the trial. And unlike Schad, it did not
involve alternative and incompatible methods of committing the same offense.
Rather, the offense itself was composed of numerous consistent transactions which
combined to satisfy the statutory elements. Finally, while the loose language in
Garza might at first blush appear to help the appellant, in context and in light of
Weaver, it is clear that aggregate theft is for all intents and purposes one offense.
And the jury was properly instructed to be unanimous with regard to that one
offense.
Even if the jury charge contained objected-to error, the court of appeals erred
in finding that the appellant was harmed by the lack of a more detailed unanimity
instruction. In assessing whether some harm resulted from the alleged error,
appellate courts must consider all relevant information revealed by the record,
including the entire jury charge, the state of the evidence, and the arguments of
counsel. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).
The balance of the jury charge was correct, and the appellant did not
complain about any other charge error on appeal. The jury was instructed to certify
their verdict only after they “have unanimously agreed upon a verdict.” (CR –
610). And they reached a unanimous verdict that the appellant had unlawfully
26 appropriated at least $200,000 pursuant to one scheme or continuing course of
conduct from one specific victim (CR – 612).
The evidence of guilt was overwhelming. The appellant admitted to
receiving well over $200,000 from the Allens and the Aniols and to spending it on
himself; he merely claimed that it was for “services rendered.” (RR. VIII – 64, 67-
70, 118-119, 143-145). Furthermore, JoAnn, Barbara, and numerous fraud
investigators testified in detail concerning the numerous transactions involved in
the course of the theft (RR. V – 14) (RR. VI – 34) (RR. VII – 3, 62, 101). Finally,
the appellant’s evidence did not challenge the verity of the individual transactions
but rather the nature of the entire relationship. Thus, if the jury were to acquit the
appellant, it would not have been because they failed to find unanimity on the
individual transactions but rather because they believed the appellant’s claim to
being a legitimate mortgage broker.
The argument of counsel, not surprisingly, followed the nature of the
evidence. The defense argued that the appellant was “unorthodox” but was
“working hard” for the money (RR. IX – 64, 67). And the State responded
generally that the appellant was a “con man” and a liar (RR. IX – 82). Without
explicitly addressing the unanimity instruction, the defense did argue:
Your job, what you’ve got to do is basically go through these 20 transactions. And the State’s – they’re listed in the exhibits. And you’re going to have to go through each and every one and say: Did the State prove beyond a reasonable doubt that on May 20th, 2003,
27 when the Aniols sent Barbara Allen $200,000 and that that $200,000 was sent to Kevin Kent, did the State prove beyond a reasonable doubt that a theft occurred on this occasion. You go through the charge. This is the law that applies. Go through this entire charge. Did the State prove beyond a reasonable doubt that this was a theft. Do it on this one, too. Every one of them.
(RR. IX – 66). But the defense itself never broke down each one and argued
specifically how the evidence was insufficient on each transaction. Rather, the
broad arguments made by the defense, such as “Kevin Kent never told anyone to
look at that website,” and “he gives an explanation for why this money is sent.
Same with the Allens, every time,” would have applied to all of the transactions
(RR. IX – 66, 73) (emphasis added). Likewise, the prosecutor told the jury, “when
you’re going over the charge, as we discussed in voir dire, you can believe that one
individual is out over $200,000, two individual victims are out over $200,000, or
three or four individuals, as long as you have one individual who is out over
$200,000.” (RR. IX – 60-61). But there was no meaningful argument that some of
the transactions were substantially different from the others, nor was there a need
for such an argument.
The lower appellate court pointed to the following argument by the State as
evidence of harm: “And if for some reason you thought that document, Defense
Exhibit No. 2 [a settlement and release agreement signed by Allens and Aniols],
should wipe away any criminal responsibility regarding the $975,000 that the
Aniols loaned, Defense Exhibit 1 [a mutual general release signed by appellant and
28 Allens] sure doesn’t. Because this document was executed by Barbara Allen, a loan
[sic] on December 8th, 2005.” Kent, 447 S.W.3d at 423 (emphasis added). But
such a brief reference in an argument that spanned forty-four pages of the
reporter’s record did not amount to a concession that the evidence was stronger
regarding the Allens than that regarding the Aniols (RR. IX – 56-100). Indeed, as
indicated by the emphasized portion above, that brief reference was meant more to
mock the appellant’s only two exhibits rather than to draw a distinction in the level
of proof between the victims. Therefore, the appellant was not harmed by any
error in the jury charge, and the court of appeals erred in holding to the contrary.
PRAYER
It is respectfully requested that the opinion of the court of appeals should be
reversed and the conviction affirmed.
/s/ Eric Kugler ERIC KUGLER Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755-5826 kugler_eric@dao.hctx.net TBC No. 796910
29 CERTIFICATE OF SERVICE AND COMPLIANCE
This is to certify that: (a) the word count function of the computer program used to prepare this document reports that there are 6,964 words in it; and (b) a copy of the foregoing instrument will be served by efile.txcourts.gov to:
James Pons Lisa McMinn Attorney at Law State Prosecuting Attorney 10900 N.W. Freeway, Suite 230 P.O. Box 13046 Houston, Texas 77092 Austin, Texas 78711 Jpons_78221@yahoo.com Lisa.McMinn@SPA.texas.gov
/s/ Eric Kugler ERIC KUGLER Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755-5826 TBC No. 796910
Date: March 3, 2015