Timothy Lee Riley v. State

• Court: Court of Appeals of Texas
• Decided: September 18, 2009
• Docket: 01-07-00718-CR
• Status: Published

Opinion

Concurring opinion issued September 18, 2009

In The

Court of Appeals

For The

First District of Texas

NO.   01-07-00718-CR

TIMOTHY LEE RILEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 1087455

CONCURRING OPINION

          In his sixth issue, appellant contends that the evidence is legally insufficient to support his conviction for aggregate theft of over $20,000 because the undisputed evidence demonstrates that he partially performed the work described in each contract, and the value of his partial performance offsets the amounts paid to him by the complaining witnesses under the contracts.  Thus, he contends, the State failed to show beyond a reasonable doubt that he stole an amount exceeding $20,000.  In its analysis, the majority expressly refuses to apply an offset for work appellant performed in analyzing whether the evidence supports a finding that the amount appellant stole exceeds $20,000.  I disagree with the majority’s reasoning that appellant is not entitled to an offset for consideration he gave as partial performance on the construction contracts in determining the overall loss to the complainants, given that the record contains undisputed evidence to support it.  I nevertheless concur in the judgment, because a reasonable jury could have found that appellant appropriated property in an amount that exceeds $20,000, even after deducting the value of work appellant performed under the contracts.                

          Appellant complains that the value of the property appropriated is not clear beyond a reasonable doubt.   Like the majority, I interpret this issue as a challenge to the legal sufficiency of the evidence.  See Markey v. State, 996 S.W.2d 226, 229 (Tex. App.—Houston [14th Dist.] 1999, no pet.).  A review of the evidence in a light favorable to the jury’s verdict reveals sufficient evidence to support the verdict, even considering an offset for work appellant performed.  See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). 

The evidence shows that appellant received a total of $44,983 from the four complainants.  This amount, however, does not account for the work done by Riley for each complainant.  Thus, we cannot accept this amount as the unassailable value of the stolen property, particularly here, where the amounts paid were admittedly pursuant to construction contracts, and the evidence shows that appellant performed at least some of his contractual obligations.  See Robalin v. State, 224 S.W.3d 470, 475 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (“The value of the property is reduced by any payments made by the defendant for the property.”).  Under Chapter 31 of the Texas Penal Code, which governs theft offenses, determination of the stolen property’s “value” requires an offset for consideration provided.  Section 31.08(d) states:

If the actor proves by a preponderance of the evidence that he gave consideration for or had a legal interest in the property or service stolen, the amount of the consideration or the value of the interest so proven shall be deducted from the value of the property or service ascertained[.]

Tex. Penal Code Ann. § 31.08(d) (Vernon 2003).  The work appellant performed at each worksite qualifies as an amount to “be deducted from the value of the property.”  Id.   As appellant produced evidence of such offsets at trial, and the complaining witnesses each testified about the work appellant actually performed, we cannot ignore them in our sufficiency analysis.  Neither can we use testimony about amounts the complaining witnesses paid to “cover” the breach of their agreements by hiring another contractor or completing the work themselves.  These contract principles are not to determine a value stolen, but instead are expectancy remedies, intended to allow the non-breaching party the benefit of his bargain.  The Texas criminal statue, however, has a restitution theory in mind:  the amount (or fair market value) stolen, less any amount received.  The amount needed to “cover” the work left under the contract can be evidence of the fair market value of the work left undone, but not of the amount stolen (which in this case was cash), or of the fair market value of the work partially performed.

          Little authority exists interpreting Section 31.08(d), but its importance is particularly evident in construction cases.  In Stockman v. State, for example, the appellant, a home builder, took money from the complainant with the understanding that the money would be used to buy appliances.  Stockman v. State, 826 S.W.2d 627, 630–632 (Tex. App.—Dallas 1992, pet. ref’d).   The appellant kept the money but never furnished the appliances.  Id. at 634.  The court acknowledged a “very decided conflict as to who is the actual owner of the money” because each party claimed that profits were earned by the appellant at a different point in the construction process.  Id. at 635.  The appellant had completed eighty-five to ninety percent of the construction.  Id. at 636.  The Dallas Court of Appeals ultimately did not reach the offset issue because it held that the evidence was insufficient to conclude that the defendant had an intent to deprive the complainant of the money, but the court observed that the value stolen had to be measured by something other than just the contract price if the evidence showed partial performance.  Id.  Just as in Stockman, appellant here received money from complainants with a promise that he would complete certain work, but he did not finish it.  In these circumstances, before concluding that the evidence supports a finding that appellant stole an aggregate amount over $20,000, we must determine whether the evidence supports the jury’s finding that appellant did not have a right to keep the money the complainants paid to him under the contracts based on work he had completed.

          It is undisputed that appellant did not perform the entirety of the complainants’ jobs, but he completed the Thomassons’ frame and slab; the Kreneks’ frame and part of the siding; the Manderscheids’ frame and slab; and the Friends’ frame.  Appellant received payments for this work.  But, he also received payments that were not associated with the completion of any work done—labeled in the contracts as “deposits” and “startup costs”. Appellant received $1,600 as a deposit from the Thomassons; $3,298 as a deposit and $2,349 as startup costs from the Kreneks; $2,021 as a deposit and $6,952 as startup costs from the Manderscheids; as well as $2,525 as a deposit and $3,325 as startup costs from the Friends.  Appellant did not refund these amounts, or any of the $44,983 paid to him, when he walked off the jobs.  In reviewing the contracts, admitted into evidence as State exhibits, a rational jury could have concluded that the complainants received nothing in exchange for these amounts, and thus that appellant unlawfully appropriated them.  Even accounting for the evidence that the complainants received partial construction work in exchange for the over $44,000 they paid to appellant, the complainants paid an aggregate amount of $22,070 in deposits and startup costs.  A reasonable jury could have concluded the complainants received no value in exchange for those amounts when the work went uncompleted—a conclusion that yields a total value in excess of $20,000 as required to sustain the conviction.  Thus, even reflecting the consideration appellant provided, by deducting the money he received upon completion of particular stages of the contract from the total amount paid to him—as section 31.08(d) requires—the evidence, when viewed in a light favorable to the verdict, supports a finding that appellant stole an aggregate amount exceeding $20,000.

Conclusion

          Section 31.08(d) requires that the value of consideration given be deducted from the value of the property appropriated in determining the aggregate value of a theft.  In analyzing the state of the evidence, the appellant thus is entitled to an offset for the value of the work he undisputedly performed on each job site in determining the overall value stolen.  He is not criminally liable under a contractual benefit-of-the-bargain theory—the statute simply examines value taken less value given.  Neither the contract amount nor contractual cover suffices to establish the aggregate value of the theft.  The evidence presented here, however, permitted a rational jury to conclude that the value stolen, even after deducting the undisputed value of consideration given, exceeds $20,000.  I therefore concur in the judgment of the court.

                                                          Jane Bland

                                                          Justice

Panel consists of Justices Bland, Sharp, and Taft.

Justice Bland, concurring.