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Martinez v. State

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

March 9, 2017


         On appeal from the 370th District Court of Hidalgo County, Texas.

          Before Justices Contreras, Benavides, and Longoria


          GINA M. BENAVIDES, Justice

         By eight issues, appellant Rodrigo Martinez, Jr. appeals his conviction for theft of property in an aggregate amount of $200, 000 or more, a first-degree felony. See Tex. Penal Code Ann. §§ 31.03, 31.09 (Act of 2011, 82nd Leg., ch. 1234 (amended 2015) (current version at Tex. Penal Code Ann. § 31.03(e)(7) (West, Westlaw through 2015 R.S.)).[1] Martinez argues that: (1) the evidence was legally insufficient to support the conviction; (2) the evidence is legally insufficient to show that the charge was not barred by the statute of limitations; (3) the trial court committed jury charge error; (4) the trial court abused its discretion by allowing the State to put on his former client as a rebuttal witness; (5) the trial court abused its discretion by allowing the State to improperly impeach a witness; (6) the State improperly asked questions intended to inflame the minds of the jury; (7) the trial court's comments regarding an adverse witness erased the impartiality of the court; and (8) there was cumulative error. Additionally, the State raises a cross-appeal regarding the restitution amount by stating the oral pronouncement by the trial court is not properly reflected in the judgment. We affirm as modified.

         I. Background

         Martinez was indicted by the grand jury on June 6, 2012 and the indictment was filed with the district court on that day. See id. The underlying offense came from the theft of funds from Elena Cantu (Cantu). Money was alleged to have been taken from April 2004 up until the last theft which was alleged to have occurred on June 7, 2007.

         Cantu had purchased ten acres of land in Edinburg, which she had been renting out to farmers. Cantu retired and decided she wanted to develop the land for residential purposes. Cantu's nephew, Richard Longoria, recommended she meet with Martinez because Martinez had experience in real estate development.

         In April 2004, Cantu and Martinez executed a business contract for the development of the ten acres of land, which they named Coyote Run. That contract listed the price of development as $150, 000 and listed Martinez as the broker and developer.[2] Cantu made an initial payment of $30, 000 to Martinez. In March 2005, Cantu secured a loan with First National Bank (FNB) in Mission in the amount of $400, 000. Cantu testified she wanted a more hands-off approach to this development and trusted Martinez to handle it due to his experience. At the time the first loan with FNB was secured, Cantu and Martinez prepared the land for apartments to be built. Martinez hired Eduardo Martinez, Sr. (Eduardo) of AD&EE Construction (AD&EE) as the general contractor on the project.

         Shortly after Cantu secured the loan, Martinez and Eduardo drafted up a draw request from the loan for $51, 364.00. Cantu and Martinez signed the draw request, which was approved by the bank. Martinez deposited the check into his law office interest on lawyer's trust account (IOLTA), which is designated for client funds. Three months after the draw request, Jorge Perez (Perez), a civil engineer with Perez Engineering, was hired to begin working with the City of Edinburg (the City) to secure the proper authorization and permits required to build.

         Draw requests continued from Martinez and Eduardo through 2005 and 2006 for substantial sums of money. Although Eduardo and Perez testified that getting proper approval from the City took a lengthy amount of time, there was little work being done on Cantu's property. Cantu testified she asked when work would be starting and Martinez always assured her there were buyers waiting for the land. Cantu stated that Martinez had told her she could expect to sell the land for $1.388 million dollars and such assurances are what convinced her to keep withdrawing money from the loan.

         During this same time period, AD&EE was also working on other projects, including Martinez's personal home. Money continued to be withdrawn out of Cantu's loan account and Martinez continued to write checks to AD&EE. In the meantime, Martinez's home was completed. Cantu testified that she was not aware that AD&EE was constructing Martinez's home at the same time they were supposed to be working on her development. Additionally, although Martinez had also taken out a loan for the construction of his house with FNB, he was depositing his loan funds into his IOLTA account, commingling them with Cantu's funds as well as other client monies.

         In March 2007, Cantu and Martinez returned to FNB. Cantu's loan was about to mature and more money was needed to complete her project. Ruben Plata, the president of the FNB-Mission branch, was able to get an additional amount approved on Cantu's loan. Cantu initially requested $525, 000, but Plata was only able to obtain approval of $515, 000 from the bank. Cantu and Martinez executed an amended agreement, which changed the land from lots for apartments to lots for residences. The next two draw requests following the increase in the loan amount were denied by FNB. At least four draw requests were submitted by Martinez in early 2007. Many of the draw requests repeated items from prior requests.

         Cantu testified that she continued to approve draw requests and withdraw money because she wanted the subdivision completed. Only minimal work was ever completed on her land.

         FNB sent multiple letters of acceleration until Cantu was not able to provide the monies required. She eventually lost the land to foreclosure to the bank, with still minimal improvements to it. Martinez never returned money to Cantu or developed the property.

         The State called Aurora Martinez (Aurora) of AD&EE as a witness. Aurora stated that Martinez was never an owner or director of their company. But the State impeached Aurora with a mechanic's lien that listed Martinez "doing business as" or dba AD&EE. Aurora still claimed that Martinez had nothing to do with their business and no kickbacks were exchanged. Aurora claimed AD&EE was only paid for work performed, even though evidence showed minimal work towards the completion of Coyote Run.

         Eduardo also testified as a State's witness and stated he was hired to be the general contractor and that he normally requests clients' money before starting work. Eduardo testified he stopped business dealings with Coyote Run around 2007 and was paid approximately $300, 000 for the work on Coyote Run. Eduardo testified that many of the draw requests were necessary in order to put deposits or lock in prices on materials, but those materials were never used or returned to Cantu. Eduardo testified that they never used Cantu's materials on other jobs and none of Cantu's money was used to build Martinez's home. Eduardo further still believes he was owed money for the project, even though it was not completed.

         Guadalupe Botello of Botello Mortar and Grading, a subcontractor, testified that he submitted a bid for completion of the subdivision and was awarded the job. Botello installed the sewer line for Coyote Run and submitted an invoice for $43, 000. However, Botello was never paid and stopped his work. Botello testified he was only paid slightly over $9, 000 for cleaning a canal, which was separate work from his bid. Botello testified he stopped working on Coyote Run due to the lack of payment, and Eduardo avoided him after he tried to collect his money.

         The State also called Plata from FNB. Plata testified about how a loan process would work regarding real estate. Plata assigned loans to his various loan officers, who were supposed to follow the progress of the real estate developments. Plata also testified that the bank released funds based on the draw requests, and that any use of the money for something other than what was listed on the draw request would constitute fraud. Plata spoke about IOLTA accounts and interpreted the bank statements submitted as evidence. He stated that Martinez's IOLTA account had insufficient funds in multiple months and that this should never happen because it was clients' money in the account. On cross-examination, Plata stated that Martinez's home loan was for $525, 000, the exact same amount Cantu was told to request when the loan was increased.

         Perez, a civil engineer on the project, stated he was not aware that Botello was not paid for his work. Perez also billed $36, 000 and was paid "maybe half" of the amount. Perez sent a letter of termination to Eduardo and received a letter from Martinez, identifying himself as Eduardo's attorney. Perez drafted a new contract to stay on the job, but never heard anything back from Eduardo or Martinez.

         Martinez called multiple witnesses who testified to his reputation in the community. Martinez also testified in his own defense. Martinez stated he approached Eduardo about helping develop Coyote Run because Martinez had never developed a residential subdivision before. Martinez stated he was never trying to make a profit off of Cantu. Martinez testified he relied on the bank loan officers and Eduardo to make sure the project was moving ahead as scheduled. Martinez admitted to taking Cantu's loan money from the draw requests and depositing it into his IOLTA account. Martinez stated that he deposited everything into his IOLTA account: loan proceeds, settlements, client payments, his personal monies. Martinez said he paid everything out of that one account. He claimed he never used Cantu's money for anything other than the Coyote Run project and that she asked him to pay off a loan and some taxes for her with the money she had given him.

         On cross-examination, Martinez stated he believed he handled Coyote Run to the best of his ability and disagreed that he did not perform all of the work under the contract. Martinez placed blame for the subdivision's failure on Eduardo, the bank, the City, and Cantu. Martinez testified that he also now realizes the problem with commingling money in an IOLTA account because it is easy to start using other people's money. The State showed multiple exhibits where Martinez's IOLTA account balance would drop below the amount placed in there from Cantu's loan, making clear that Cantu's money was being used for other purposes.

         On rebuttal, the State called Sonia Martinez de Garza (Sonia), a former client of Martinez. She testified that she asked Martinez to help her combine some business entities, but they did not end up going through with the consolidation. Sonia testified she paid Martinez $5, 000, only had two meetings with him, asked for the money or an accounting, and never received the accounting or money in return.

         During the jury charge conference, Martinez asked for a specific instruction regarding the statute of limitations, which the trial court denied. The jury found Martinez guilty as charged in the indictment. The trial court sentenced Martinez to seven years in the Texas Department of Criminal Justice-Institutional Division and ordered restitution in the amount of $416, 000 on the record. This appeal followed.

         II. Sufficiency of the Evidence

         By his first issue, Martinez challenges the sufficiency of the evidence.

         A. Standard of Review

         When evaluating a sufficiency challenge, the reviewing court views the evidence in the light most favorable to the verdict to determine whether a rational jury could find the defendant guilty beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.); see Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony, and a reviewing court is not to substitute its judgment as to facts for that of the jury as shown through its verdict. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). When the reviewing court is faced with a record supporting contradicting inferences, the court must presume that the jury resolved any such conflict in favor of the verdict, even if it is not explicitly stated in the record. Id.

         A reviewing court must measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. In order to have reversal of a conviction on a claim of insufficiency of the evidence, Martinez must show that no rational jury could have found all the elements of the offense beyond a reasonable doubt. Brooks, 323 S.W.3d at 902.

         B. Applicable Law

         A person commits an offense of theft of property if he unlawfully appropriates property with the intent to deprive the owner of the property. Tex. Penal Code Ann. § 31.03. Appropriate means "to acquire or otherwise exercise control over property other than real property." Id. at § 31.01(4) (West, Westlaw through 2015 R.S.). The intent to deprive an owner of his property means an intent "to withhold the property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner." Id. § 31.01(2)(A). Appropriation is unlawful if it is without the owner's effective consent. Id. Consent is not effective if induced by deception. Id. § 31.03(3)(A); see Taylor v. State, 450 S.W.3d 528, 535 (Tex. Crim. App. 2014). There are two statutory definitions of 'deception' that are relevant here:

1. creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgement of another in transaction, and that the actor does not believe to be true; or
2. promising performance that is likely to affect the judgment of another in the transaction and that the actor does not intend to perform or knows will not be performed, except that failure to perform the promise in issue without other evidence of intent or knowledge is not sufficient proof that the actor did not intend to perform or knew the promise would not be performed.

Taylor, 450 S.W.3d at 535-36 (quoting Tex. Penal Code Ann. § 31.01(1)(A), (E)).

         The Texas Penal Code "allows multiple thefts committed pursuant to one scheme or continuing course of conduct-at different times and against different victims-to aggregate within one offense for the purposes of the offense grade." Anderson v. State, 322 S.W.3d 401, 407-08 (Tex. App.-Houston [14th Dist.] 2010, pet. ref'd) (quoting Tex. Penal Code Ann. § 31.09). "Aggregation under section 31.09 creates a single new offense for jurisdiction, punishment, and statute of limitations purposes." Id. at 408. "Each individual theft and its elements become an element of the aggregate theft offense." Id. "The limitations period for aggregate theft begins to run after the last theft is completed." Id. "Aggregated theft is an offense with continuing conduct that ends with the last theft, and not after." Id. "Moreover, 'theft by exercising control is committed and the statute of limitations commences once possession of the property becomes unlawful.'" Id. (quoting Barnes v. State, 824 S.W.2d 560, 562-63 (Tex. Crim. App. 1991), overruled on other grounds by Proctor v. State, 967 S.W.2d 840, 842 (Tex. Crim. App. 1998)).

         Additionally, theft involving a contract or a written agreement, such as the one between Cantu and Martinez, presents a special set of circumstances.

A claim of theft made in connection with a contract . . . requires proof of more than an intent to deprive the owner of property and subsequent appropriation of the property. In that circumstance, the State must prove that the appropriation was a result of a false pretext, or fraud. Moreover, the evidence must show that the accused intended to deprive the owner of the property at the time the property was taken. In reviewing the
sufficiency of the evidence, though, we should look at events occurring before, during, and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act.

Taylor, 450 S.W.3d at 536. However,

a contractor may yet be found guilty of theft if, at some point after the formation of the contract, he formulates the requisite intent to deprive and appropriates additional property by deception; that is, he induces his customer to make further payment on the contract while ...

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