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Binnion v. State

Court of Appeals of Texas, First District

June 29, 2017

ROYCE G. BINNION, JR., Appellant

         On Appeal from the 180th District Court Harris County, Texas Trial Court Case No. 1391847

          Panel consists of Chief Justice Radack and Justices Keyes and Massengale.


          Sherry Radack Chief Justice

         The 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.


         Most of 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.

         In 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].

         The 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.

         Ortego 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.

         Ortega 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.

         Ortego 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.

         A. The Indictment

         Appellant 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.

         B. The Court's Charge and Jury's Verdict

         The 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 ...

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