McElroy v. State

667 S.W.2d 856, 1984 Tex. App. LEXIS 4968

• Court: Court of Appeals of Texas
• Decided: January 23, 1984
• Docket: 05-83-00036-CR
• Status: Published

Opinions

STOREY, Justice.

This appeal is from a conviction for the misapplication of construction trust funds having a value of $250 or more, a felony proscribed by TEX.REV.CIV.STAT.ANN. art. 5472e (Vernon Supp. 1982-1983). In two of appellant’s nine grounds of error,¹ he claims that the State produced insufficient evidence to prove that he misapplied or diverted the construction funds with intent to defraud or to prove that the expenditures were not “reasonable overhead ... directly related to such construction project.” After careful review of the record we agree that the State neither proved the requisite intent nor negated the exception which permits the use of the funds for reasonable overhead. Accordingly, we reverse and remand with instructions to enter an order of acquittal.

SUMMARY OP FACTS

The record reflects that appellant contracted with Mr. and Mrs. Cox to add an additional room and a patio to their residence. The contract, dated September 28, 1978, called for a price of $17,437 and completion within eighty-three days. Following a twenty-five percent down payment, the Coxes were supposed to—and did— make payment as work progressed on the following schedule:

Work Completed Amount Date Paid

Frame 25% $4,359. Nov. 26

Roof 25% $4,359. Dec. 6

Brick 15% $2,016. Jan. 18

Completion 10% $1,743. —

Five days after execution of the contract, appellant put five or six employees to work on the foundation. The foundation was completed at the end of October. On November 26 Mrs. Cox made the first progress payment after the frame was up. After appellant finished the roof during the first part of December, Mrs. Cox wrote him a check for the next installment. Appellant took some time off from the project over the holidays but returned to continue work in January. The record shows that Mrs. Cox made the next progress payment on January 18, 1979. Mrs. Cox testified that soon after the January payment, appellant took his men off her project to work on another one. Coker, a carpenter, testified that March 22 or 23 was the last day on the job.

The State relied on four dishonored payroll checks written on March 16 and 23 to establish the date on or about which the offense occurred. The three workers who were payees on these checks were also working on a church for appellant around the same time. It is unclear from the record whether the dishonored checks were payment solely for work on the Coxes’ house.

The State introduced numerous checks drawn on two of appellant’s business checking accounts to establish that appellant used the funds for purposes other than labor, materials, or reasonable overhead expense in connection with the Cox project. Balance statements on two of appellant’s three accounts for the duration of the project were also introduced in evidence. The State showed that one of these accounts had a negative balance at the end of September 1978 and, after deposit of the initial payment from the Coxes on September 29, 1978, certain checks and bank charges were paid from the account. However, the State did not show the balance of the payroll account when the project began. The State did not trace the source of funds from this project to uses other than the Cox project. Additionally, the State did not show that all deposits in the business accounts came from the Coxes. For example, the State did not show the source of an October 20 deposit of $6,058 to one account. The record reflects that this deposit could not have come out of the payments from the Coxes. Thus the State did not show that these were construction funds. The State’s evidence of diversion of the construction funds consists of checks such as the following:

PAYEES

Nov. 2 Marsha McEIroy $1,000

Nov. 13 Chivas Square Apartments 300 (N.S.F.)

Nov. 17 Mark McEIroy 175 (N.S.F.)

Nov. 29 Mark McEIroy 175 (N.S.F.)

Deo. 7 B & B Liquor (Cashier’s check) 1,006.64

Dee. 10 Chivas Square Apartments 300

Dec. 15 Mark McEIroy 225

Dec. 18 First National Bank 544.82

Jan. 19 General Telephone 228.13

Jan. 26 Mark McEIroy 100

Mar. 7 General Telephone 118.74 (N.S.F.)

Appellant testified that he made many of his business payments with cash. The record reflects that appellant surely made some payments with cash because numerous materials were purchased which were not paid for by check. The State introduced these checks in evidence by the testimony of bank officers who testified that these were true records of the banks. However, the State did not show the purpose or disposition of the proceeds of the checks that it claimed to be diversions or misapplications of funds. For example, appellant testified that he delivered the $1,006 cashier’s check to B & B Liquor on December 7 to cover his company’s payroll checks cashed at that store. The State did not bring in the payees of this or any of the other checks to show what was done with the proceeds of these checks.

INTENT TO DEFRAUD

Appellant contends that the evidence is insufficient in two respects: (1) It fails to show that he misapplied or diverted any funds with intent to defraud; and (2) it fails to negate that the disbursements the State relied upon were reasonable overhead of the project. First we address the evidence offered to prove culpable mental state. The pertinent portions of article 5472e provide as follows:

Construction payments and loan receipts declared trust funds

1. All moneys or funds paid to a contractor or subcontractor ... under a construction contract for the improvement of specific real property in this state ... which are secured ... by a lien on the specific property to be improved are hereby declared to be Trust Funds for the benefit of ... mechanics ... or mate-rialmen who may ... furnish labor or material ...; provided, however, that moneys paid to a contractor or subcontractor ... may be used to pay reasonable overhead ... directly related to such construction contract. ...

Wrongful disbursement, use or retention of trust funds

2. Any Trustee, who shall, directly or indirectly, with intent to defraud, retain, use, disburse, misapply, or otherwise divert, any trust funds, or part thereof, as defined in Section 1 of this Act, without first fully paying and satisfying all obligations of the Trustee to all artisans, laborers, mechanics, contractors, subcontractors, or materialmen, incurred or to be incurred in connection with the construction and improvements, for which said funds were received, shall be deemed to have misapplied said Trust Funds.... Misapplication of Trust Funds ... of the value of $250 or over shall be punished by confinement in the Department of Corrections for a period not exceeding ten years.

TEX.REY.CIV.STAT.ANN. art. 5472e, §§ 1, 2 (Vernon Supp. 1982-1983) (emphasis added). The State contends that the “record reflects that the [ajppellant used the Coxes’ money for expenses other than those which arose from the construction project.” Although the State correctly concedes that it has the burden of proving a misapplication under the statute, we disagree with the conclusion that it met that burden. Under this statute the State must prove intent to defraud in the accused’s payments for purposes other than the construction project and its related expenses.

When “intent to defraud is the gist of the offense, the State must prove facts from which such an intent is deducible beyond a reasonable doubt and, in the absence of such proof, a conviction will not be justified.” Stuebgen v. State, 547 S.W.2d 29, 32 (Tex.Cr.App.1977). For example, in Knapp v. State, 504 S.W.2d 421 (Tex.Cr.App.1974) (on motion for rehearing), the court noted that the mere showing of a taking of $1,200 of stamps would have been insufficient to show “intent to deprive the [State] of the value” of the stamps and to appropriate them to the accused’s own use. In Knapp the State showed other evidence of intent, namely, that the accused exchanged the same amount and type of stamps for a pickup truck. Id. at 437. Similarly, in the case at bar, the State did not prove that appellant gave the proceeds of the checks to a person other than one who was authorized to receive those proceeds. For example, the State could have attempted to prove its allegation that appellant wrongfully disbursed $1,006 to the B & B Liquor store by showing what items, if any, appellant purchased at the store. Furthermore, the State did not show that the $1,006 cashier’s check payable to B & B Liquor came out of the construction funds.

The Court of Criminal Appeals in Stuebgen gave some guidance as to how an offense requiring intent to defraud fits into the scheme of culpable mental states in TEX.PENAL CODE ANN. § 6.03 (Vernon 1974). In a forgery case, under Stuebgen, the State must prove that the accused knew the instrument was forged to show intent to defraud. Hence, intent to defraud offenses fall under the intentional or knowing culpable mental state categories. See Stuebgen, 647 S.W.2d at 32. Intent to defraud may be shown by circumstantial evidence.

Here, to circumstantially prove intent to defraud, the State relies upon various checks made out to payees other than subcontractors or materialmen. However, the checks were insufficient proof of intent to defraud because the State did not prove that the payees of these checks received the proceeds of the checks and that they did not merely cash appellant’s checks. Even if the State had proven that the payee of each of these checks received the proceeds of the check, the State did not prove beyond a reasonable doubt that appellant knew that the checks were drawn on the construction trust funds because the State did not trace the construction funds to the alleged misapplications of them to the exclusion of other sources of those payments. For example, appellant may have intended the deposit of $6,058 on October 20 to be the source of these payments to third parties. The State did not show that the source of this deposit was a payment by the Coxes, and, in fact, the three payments by the Coxes are specifically traceable to deposits other than the $6,058 deposit.

Similarly, the State could not prove intent to defraud by showing an extraneous construction project in which appellant also drew checks to third parties while fai’mg to pay a plumber for work performed. This is so because the proof of the extraneous transaction did not tend to prove a violation of article 5472e with intent to defraud. Proof of an extraneous transaction that is alleged to constitute an offense should not be permitted “unless the commission of the other crime is clearly proved and the accused is shown to be the perpetrator.” Thompson v. State, 615 S.W.2d 760, 761 (Tex.Cr.App.1981); Sanders v. State, 604 S.W.2d 108, 111 (Tex.Cr.App.1980); Eanes v. State, 546 S.W.2d 312, 315 (Tex.Cr.App.1977); cf. Landers v. State, 519 S.W.2d 115, 117 (Tex.Cr.App.1974) (“It was incumbent upon the State to prove that such exhibit was a forgery and that appellant was connected with it.”). Without holding that the admission of the extraneous offense was harmful or reversible error, we conclude that proof of the extraneous transaction was not relevant to a material issue in the case. See Sanders, 604 S.W.2d 111; Landers, 519 S.W.2d at 118. The actual misapplication of construction funds with intent to defraud is a material issue in the case. Proof of the extraneous transaction proved nothing more than was proven in the charged offense. The proof of these transactions did not show a misapplication of the Coxes’ funds. Hence, evidence of the extraneous transaction cannot assist in ruling on the sufficiency of the evidence.

In two recent prosecutions of contractors under the general theft statute, the Court of Criminal Appeals held that the evidence concerning the use of construction funds was insufficient to establish the requisite intent for theft by deception. Peterson v. State, 645 S.W.2d 807 (Tex.Cr.App.1983) (en banc); Phillips v. State, 640 S.W.2d 293 (Tex.Cr.App.1982). In those cases, the State had to prove that the construction funds were obtained by deception with the intent to misappropriate them. In Peterson, the court remarked: “The fact that there were unpaid bills does not show appellant did not use the $58,000 given him by [the homeowner] to pay for materials as promised. Consistent with the proof ... is the possibility that appellant spent all of the $58,000 on materials, and the unpaid bills relied on by the State were the result of cost overruns.” Without mentioning the duty imposed by article 5472e as to the use of construction contract installments, the Court of Criminal Appeals held that the State failed to prove that the installments were for the exclusive use of suppliers and that Peterson received the payments intending not to pay the suppliers. The court added that even if the owner directed Peterson to pay only suppliers out of the funds, the State failed to prove that the funds were not spent on materials, because there was no evidence to show what happened to any of the total amount paid. This last point applies with equal force to the proof of misapplication of funds in this case: The State did not prove that the funds received from the Coxes were not spent on labor, materials, and overhead directly related to the project. Consistent with all the testimony and exhibits in the record are the possibilities: (1) that the checks drawn on McElroy Construction’s account and payable to persons unrelated to the project were cashed and the proceeds were used on the project; (2) that the checks were drawn against appellant’s own funds in the third account for which there was no balance statement in the record; or (3) that these checks were “reasonable overhead” directly related to the project. See also Jensen v. First City National Bank, 616 S.W.2d 452 (Tex.Civ.App.—Houston [14th Dist.] 1981), writ ref'd n.r.e. per curiam, 623 S.W.2d 924 (1982) (insufficient evidence in civil action involving article 5472e).

Since Peterson was not an article 5472e case and is not directly in point on the issue of proof, we draw on cases under other statutes in which proof of the use or appropriation of the proceeds of a check is required. For example, to prove misappropriation when the State charges theft by deception with a check, it is necessary to prove not only that the check was given to the accused in the amount charged, but also that the accused cashed the check which subsequently cleared through the drawer's bank thus reducing the funds in the drawer’s account. See Compton v. State, 607 S.W.2d 246, 252 (Tex.Cr.App.1979) (on rehearing en banc); Watkins v. State, 438 S.W.2d 819, 821 (Tex.Cr.App.1969); Paiz v. State, 167 Tex.Cr. 496, 320 S.W.2d 827 (1959). In the context of the more complex protective scheme of article 5472e, the gist of the offense is the misuse of the funds by payment for purposes other than the project rather than the mere taking of money from its owner. Just as the State in a case of theft of a check by deception must show that the accused accomplished his purpose of misappropriating the funds by cashing or negotiating the check, the State must show under article 5472e that the contractor actually applied the value of the check to a forbidden purpose thereby intending to deprive subcontractors and materialmen of their compensation.²

Where a similar question arose in a Florida decision under a statute of the type involved here, the court reversed the conviction of the corporate officer who had endorsed the check given in payment of the construction work because “the application of the proceeds of this check was not proved nor was the amount involved established.” Silvestri v. State, 122 So.2d 502, 503 (Fla.Dist.Ct.App.1960). In our case, the State went a step further than the prosecution in Silvestri to show that checks were drawn on the business operating account to various payees, but the State still did not show “the application of the proceeds.” As in Silvestri, “the inference from [the accused’s] actions is susceptible to a reasonable interpretation other than his guilty participation .... ” Id. See also State v. McConnell, 201 Neb. 84, 266 N.W.2d 219 (1978). We conclude that proof of checks issued to parties who apparently were not related to the project without tracing the proceeds of the checks will not support the proof of intent required by article 5472e.

REASONABLE OVERHEAD EXPENSES

Additionally, we conclude that the State failed in its proof because it did not negate the statutory exception for “reasonable overhead.” First, it must be decided whether the “reasonable overhead” provision is an exception or a defense. We conclude that it is an exception.

The general provisions of the Penal Code are applicable to offenses defined outside the Code “unless the statute defining the offense provides otherwise.” TEX.PENAL CODE ANN. § 1.03(b) (Vernon 1974). In Honeycutt v. State, 627 S.W.2d 417 (Tex.Cr.App.1982), the court found “the plain intent of [§ 1.03(b) ] to be that only an act of the legislature may remove an offense from the general principles established in the first three titles of the Code.” Id. at 423. The general provisions of concern here are those which define exceptions and defenses. TEX.PENAL CODE ANN. §§ 2.02, 2.03 (Vernon 1974).

Subsection (a) of Section 2.02 provides that all exceptions are labeled as follows: “It is an exception to the application of .... ” Subsection (c) provides, however, that “[t]his section does not affect exceptions applicable to offenses enacted prior to the effective date of this code.” Hence, the legislature intended to allow certain exculpatory matters of proof in penal statutes outside of the code to be exceptions despite the absence of the label required by subsection (a). The State has the burden to negate the existence of an exception in the charging instrument and to prove beyond a reasonable doubt that the exception is not applicable. TEX.PENAL CODE ANN. § 2.02(b) (Vernon 1974).

On the other hand, with a defense, once the evidence raises the issue, the State must disprove the defense beyond a reasonable doubt, provided the court charges the jury as to the existence of the defense. TEX.PENAL CODE ANN. § 2.03(d) (Vernon 1974) (Practice Commentary), construed in Luck v. State, 588 S.W.2d 371, 375 (Tex.Cr.App.1979) (en banc), cert. denied, 446 U.S. 944, 100 S.Ct. 2171, 64 L.Ed.2d 799 (1980). The failure to request an instruction on a defense waives any error stemming from such failure. White v. State, 495 S.W.2d 903 (Tex.Cr.App.1973). Section 2.03 also provides that “[a] ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and eviden-tiary consequences of a defense.” TEX.PENAL CODE ANN. § 2.03(e) (Vernon 1974).

Because evidence concerning the “reasonable overhead” purpose of payments alleged to be fraudulent misappropriation of construction funds is in the nature of inferential rebuttal proof tending to negate the statutory elements of intent to defraud and misapplication of the funds for purposes other than the expenses of the project, it is not a “ground of defense” under TEX.PENAL CODE ANN. § 2.03(e) (Vernon 1974). The proof of the offense calls for some of the same evidence required to disprove the exception. Cf. Stump v. Bennett, 398 F.2d 111, 199-20, 122 (8th Cir.) (evidence of a defense imper-missibly shifted burden of persuasion to defendant to negate indispensible elements of the crime), cert. denied, 393 U.S. 1001, 89 S.Ct. 483, 21 L.Ed.2d 466 (1968). Further, the proviso for “reasonable overhead” is contained in the definition of the funds that article 5472e declares to be trust funds. It appears to be stated as another proper application of funds received for construction other than labor or materials. Under the statute, a defendant is not required to show that payments went only to laborers and materialmen. It would be unreasonable to require a defendant to prove the use of his funds as “reasonable overhead” while the State has to prove the funds were not used for the direct expenses of the job. Since the “reasonable overhead” provision is not a ground of defense, is not labeled as a defense, and is not excluded from the general provisions of the penal code, it must be an exception. While it is not labeled as an exception either, section 2.02, permits an unlabeled exception in a law predating the code to remain an exception. Despite the language in section 2.03(e), the Court of Criminal Appeals has recognized that a penal statute outside of the Code may contain exceptions as well as defenses. See Threlkeld v. State, 558 S.W.2d 472 (Tex.Cr.App.1977) (dictum).

Having concluded that “reasonable overhead” is an exception, it follows that under section 2.02, the State had to prove that the appellant’s checks to payees such as GTE, Chivas Apartments, and First National Bank were not “reasonable overhead.” We conclude that the State failed to carry that burden because it did not show the application of these checks. For example, the State could have introduced evidence of the bills from GTE for which the checks were payment. The State did not prove that the appellant allocated his overhead expenses in an unreasonable manner. See North Texas Operating Engineers v. Dixie Masonry, 544 F.Supp. 516, 519-20 (N.D.Tex.1982) (In civil case under 5472e, because overhead, by definition, includes “expenses of a business, without regard to the outlay on a particular contract,” overhead expenses need not be directly traceable to a particular project but need only reasonably reflect the expenses associated with each project). In fact, the State did not prove which payments were made for materials, for labor, and for overhead expenses, respectively, and did not prove which payments came out of the Coxes’ installments rather than from some other source. We hold, therefore, that the State failed to sustain its burden of proving that the checks offered were not overhead expenses related to this project.³

Accordingly, we reverse and remand with instructions to enter an order of acquittal.

ALLEN and CARVER, JJ., join in this opinion.

1 . Appellant maintains in three grounds that article 5472e is void for vagueness in several respects. However, since we can dispose of this appeal on sufficiency grounds, we do not reach the constitutional argument, as we are constrained to proceed. See State v. Coberly, 644 S.W.2d 734 (Tex.Cr.App.1983).

2 . The State relied in its indictment and at trial upon fund misapplication rather than fund retention, which is also a violation of article 5472e.

3 . In Peterson, Judge Onion observed that "[f]rom much in the record it appears ... that the criminal law process was being utilized to collect a debt arising out of a contract. . . .” 645 S.W.2d at 812. Additionally, here, it appears the process was used to punish appellant for shoddy workmanship.