ROYCE G. BINNION, JR., Appellant
THE STATE OF TEXAS, Appellee
Appeal from the 180th District Court Harris County, Texas
Trial Court Case No. 1391847
consists of Chief Justice Radack and Justices Keyes and
Radack Chief Justice
trial court entered judgment on a jury verdict finding
appellant Royce Binnion, Jr. guilty of aggregate theft of
over $200, 000 and assessing punishment at five years'
confinement. We affirm.
the facts are not in dispute. Appellant worked for National
Oilwell Varco (NOV), managing its Highway 90 plant. Appellant
was authorized to purchase equipment for the plant without
secondary approval for items costing less than $5, 000.00.
appellant's brief, he concedes the evidence at trial
demonstrated that he falsified documents and used company
funds to purchase personal items, but he argues that his
bosses allowed him to do so to prevent him from reporting the
company's illegal activities. As described in his brief,
appellant also complains that there is insufficient evidence
that Brad Ortego-the complainant who investigated
appellant's theft of NOV property-had a greater right to
the stolen money and property than appellant:
[Appellant] was accused, in essence, of being behind a false
billing scheme, using his status as a plant manager for
National Oil Well Varco or NOV to create a series of false
billings for payment to a shell company, and to using company
funds for purchase of personal items, between 2008 and 2011.
The defense actually did not contest that this scheme
existed; it merely stated that the higher ups knew and
consented to [appellant]'s dipping into company funds as
it was a way to keep him quiet about blowing the whistle on
sub-standard pipe his company had put into the market and for
which it was investigated by the federal government. . . .
The alleged complainant in the indictment, Mr. Ortega, took
the stand and functioned as an expert regarding the false
invoices, and was permitted under Rule 1006 to use
spreadsheets and summaries of the invoicing, as well as a
chart prepared by the State, to lay out the scheme over
defense objection. Other witnesses testified to the apparent
lack of actual delivery of any of the supposedly purchased
goods or the questionable nature of the items that
[appellant] supposedly diverted for personal use, such as
fishing supplies and a golf cart.
The defense attempted several times to connect the prior bad
conduct of the company to the alleged consent by the NOV
corporate supervisors as to [appellant]'s conduct,
alleging that, in essence, this was "hush money"
that they permitted to avoid him spilling the beans about
their responsibility for unsafe piping materials placed into
the market and in service in the dangerous oil and gas fields
across the country and the globe. The trial court denied
this, though it did permit his counsel to go into limited
questioning of Ortega and some other witnesses as to whether
they had any knowledge of such things.
At the end of the day, there was insufficient evidence that
Mr. Ortega had any greater right to possession of the
property than did [appellant].
record reflects that, after NOV's accounting clerks
recognized various irregularities in purchase transactions
handled by appellant and improper documentation of purchases
he made from a company called B&L supplies, the Human
Resource department and company auditors got involved.
is NOV's company auditor, and he began his investigation
in April 2011. He examined 174 invoices that appellant
approved for payments to B&L Supplies. Ortego discovered
that despite NOV paying B&L $742, 812.53 on these
invoices, B&L never delivered the supplies to NOV that
B&L billed it for. Ortego also discovered that B&L
was owned by William Pidgen, a friend of appellant's, and
that B&L operated out of a residence, with NOV being its
only customer. When confronted, Pidgen admitted that the
B&L invoices to NOV were fake, and that he and appellant
split the proceeds from the false invoices.
testified that he discovered appellant stole from NOV with
two additional fraudulent invoice schemes. Appellant
purchased items for personal use for himself and his family
members from Navasota Industrial Supply (NIS), while
requesting that NIS submit multiple invoices to NOV to keep
the amounts under the $5, 000 threshold for NOV purchases
appellant could approve. Appellant also formed another
company, R.R.J. Hotshot & Trucking, and had NIS bill NOV
for RRJ services that it did not actually provide.
testified that NOV's insurance policies covered about
$750, 000 in these theft losses, and that NOV was
out-of-pocket for the $250, 000 deductible.
was indicted for theft exceeding $200, 000, and the charging
instrument identified Brad Ortega as the complainant:
The duly organized Grand Jury of Harris County, Texas,
presents in the District Court of Harris County, Texas, that
in Harris County, Texas, ROYCE G. BINNION, JR., hereafter
styled the Defendant, heretofore on or about BETWEEN MARCH
11, 2008 THROUGH MAY 2, 2011, did then and there unlawfully,
pursuant to one scheme and continuing course of conduct,
appropriate, by acquiring and otherwise exercising control
over property, namely, MONEY, owned by BRAD ORTEGO, 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.
The Court's Charge and Jury's Verdict
court's charge contained reference to the indictment
language, and several definitions for the jury. This
included, Our law provides that a person commits the offense
of theft if he unlawfully appropriates property with intent
to deprive the owner of property.
Appropriation of property is unlawful if it is without the
owner's effective consent.
"Appropriate" means to acquire or otherwise
exercise control over property other than real property.
"Property" means tangible or intangible personal
property including anything severed from the land, or a
document, including money, that represents or embodies
anything of value.
"Deprive" means to withhold 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 .
"Owner" means a person who has title to the
property, possession of the property, whether lawful or not,
or a greater right to possession of the ...