Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 370th District Court of Hidalgo County,
Justices Contreras, Benavides, and Longoria
M. BENAVIDES, Justice
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.)). 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.
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.
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
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. 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
Sufficiency of the Evidence
first issue, Martinez challenges the sufficiency of the
Standard of Review
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.
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.
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)).
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)).
theft involving a contract or a written agreement, such as
the one between Cantu and Martinez, presents a special set of
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