Jose Salcido v. The State of Texas--Appeal from 41st District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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JOSE SALCIDO, ) No. 08-04-00286-CR

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Appellant, ) Appeal from

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v. ) 41st District Court

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THE STATE OF TEXAS, ) of El Paso County, Texas

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Appellee. ) (TC# 20040D02116)

O P I N I O N

Jose Salcido appeals his convictions of theft over $1,500 aggregated (Count I) and misapplication of fiduciary property over $1,500 aggregated (Count II). A jury found Appellant guilty, found the enhancement allegations true, and assessed his punishment on each count at a fine of $10,000 and imprisonment for a term of fifteen years and six months. We affirm.

FACTUAL SUMMARY

Appellant placed advertisements in the Shopping Guide and the El Paso Times for credit repair services and for assistance in obtaining home loans and car loans by those with bad credit. In September 2001, Yolanda Valdez saw the ad in the Shopping Guide and called Appellant to discuss repairing her credit. Appellant met with Valdez in her home and explained what he could do. Valdez gave him several payments totaling $409 for credit repair services and another $500 as a down payment on a new car. While Valdez signed an agreement with National Credit Repair, she made the checks payable to Appellant rather than the credit repair agency. When Valdez tried to buy a Pontiac, the auto representative said he did not understand why Appellant had requested a down payment from her. Valdez did not get the car loan. When she threatened to call the police, Appellant paid her $500 but claimed he had lost the remaining $409.

In November 2001, Gina Simental saw the ad in the El Paso Times and called Appellant. She explained that she and her husband wanted to purchase a house but they had poor credit due to medical bills. Appellant told her that it wouldn t be a problem because they were first-time home buyers and a program existed which could help them. Simental met with Appellant at Ed Walsh & Associates and he obtained detailed information about her finances and credit history. He introduced her to a credit repair program known as ICR and charged her $260. Simental paid by credit card. Her husband later met with Appellant and paid another $260 to repair his credit. Appellant advised the couple that they could purchase a home after ICR had repaired their credit. He suggested that they let him know when they had found a house. Once they found a house, Appellant said he would negotiate the purchase price and asked how much of a down payment they could afford. They gave him three checks totaling $2,400 as a down payment. Although the checks were made payable to Home Buying, they were endorsed by Appellant s friend, Mary Lou Gasca, who gave the money to Appellant. The Simentals credit was not repaired and Appellant kept the money. He explained that he couldn t return the money because he had wasted it. He also apologized and admitted he had done this before. He even provided the name of a detective to contact. Appellant eventually returned $50 to the Simentals.

In November or December 2001, Debbie Gass saw Appellant s advertisement in the newspaper. Appellant met with Gass and her husband at their home. He told them there were programs to help people reestablish their credit and get into a home. Appellant accepted their check for $500 and encouraged them to begin looking for a house. When they found a home, Appellant told them he would negotiate with the sellers and they should not talk to the sellers themselves. Appellant did not repair the couple s credit or assist them with the purchase. He eventually refunded $200.

Dallas Henry Pridgen contacted Appellant in November 2001 to obtain a debt consolidation loan. He paid $500 in order to obtain the loan. Appellant took an application and told him that a woman would contact him by telephone to get additional information. A woman later called Pridgen and asked him more questions but he did not get the loan. Pridgen called Appellant and asked him what had happened. Appellant replied that he had not been able to pull it off and he could not return Pridgen s money because he had spent it. As he had done with the Simentals, Appellant told Pridgen that he had a problem and he gave him the name of a detective.

In January 2002, Victor Alonzo spoke with Appellant about his credit problems and his desire to buy a home. Appellant said he would charge $500 to repair the credit. Alonzo paid $400 in cash and told Appellant he would pay another $100. Appellant told him to start looking for a house. When Alonzo found a place, Appellant told him that a larger down payment would reduce the monthly payments. Alonzo said he expected to receive a $1,000 income tax refund but he had not yet prepared the return. Appellant gave Alonzo a ride to get his income tax return prepared and filed electronically and later drove Alonzo to pick up the refund check and cash it. Alonzo gave Appellant $900 as a down payment on the house. Appellant did not repair Alonzo s credit or assist him with the purchase of the house. When Alonzo finally made contact with Appellant after numerous attempts, Appellant told him that he had spent the money and gave him the name of a detective. Appellant eventually repaid $800.

Irma Lopez saw Appellant s ad in February 2002. She told Appellant that she had bad credit and needed help to buy a house. Appellant asked her to pay $500 to start the paperwork. Lopez borrowed the money and paid him. Appellant then told her that she needed to pay between $2,500 and $4,000 as a down payment for a house. Lopez gave him $2,500 in cash. When her subsequent efforts to contact Appellant by telephone were unsuccessful, she went to the office of Maria Walsh, the operator of a credit services business. Appellant had previously given Lopez one of Walsh s business cards. Appellant happened to be there. At first, he told Lopez that her paperwork was being processed but when she threatened to call the police, he spoke with Walsh privately. Walsh gave Lopez a check for $2,300, but Appellant did not refund the remainder of the money Lopez had paid him.

In February 2002, Lorraine Amezaga called Appellant in response to his ad in the Shopping Guide. She wanted to purchase a home but she had been paying some bills late. Appellant set up a meeting with Amezaga and her husband at their residence. Amezaga gave Appellant $500 to start the paperwork. He said he would get back with them but if they had more money, the process would go faster. The Amezagas were interested in purchasing a particular home and Appellant even went with them to look at it. They gave Appellant an additional $3,500 as a down payment. Although he represented that he would speak to sellers, he failed to do so and did not respond to the couple s telephone calls for approximately two weeks. When the Amezagas could not find Appellant, they called the police. The officers arrived at the home and Ms. Amezaga called Appellant. She left a message that she had an additional $2,000 to give him. Although Appellant had been avoiding her calls for two weeks, he returned this one within half an hour and said that he could stop by her house and pick up the money. The police officers moved their car and waited for Appellant to arrive. They questioned him and he immediately refunded $3,500 to the Amezagas from a money bag that he had with him. He signed a letter stating that he would refund the remainder or the Amezagas would press charges. Appellant refunded all but $200.

In July 2002, Jim Burek hired Appellant to appraise a commercial building. Burek paid $1,200 in cash. Appellant never performed the appraisal and Burek was unable to contact him. Burek subsequently saw a news story on television about Appellant.

Rudy Trujillo works for Jaguar of El Paso. In July 2002, Trujillo found a Honda Odyssey van that he wanted to purchase but he could not obtain a loan. Someone at the dealership told him that Appellant was a loan officer and could help him obtain a car loan. Trujillo called Appellant and met with him at a Denny s restaurant. Appellant told Trujillo that he works with people who have a hard time getting credit and he could help him obtain the financing. Appellant said that he would need $600 as a downpayment to get the loan started through the bank. Trujillo did not have the money with him but he paid Appellant approximately a week later. Appellant gave Trujillo a receipt and told him that he would get a full refund if the loan were not approved. After a few days, Appellant told Trujillo that the loan had been approved and he would be receiving the check within a couple of days. Trujillo continued to wait for the check but in the meantime, he saw a news story about Appellant on television. Trujillo tried to call Appellant s cellphone but the number was not working. Trujillo did not get the loan and Appellant did not refund any of his money.

Paul Macias and his wife were referred to Appellant about a car loan. They met with Appellant at a restaurant and he explained how he could help them obtain the financing. At a second meeting in July 2002, Macias gave Appellant a downpayment of $2,000 to start with the paperwork. Two days later, Appellant advised him that the loan had been approved and to start looking for a car. They found a vehicle, but Appellant did not obtain the financing for them nor did he return the downpayment.

Count I of the indictment alleged that Appellant, pursuant to one scheme or continuing course of conduct, unlawfully appropriated currency from Lorraine Amezaga, Gina Simental, Dallas Pridgen, Rudy Trujillo, Paul Macias, Jim Burek, Victor Alonzo, Irma Lopez, Yolanda Valdez, and Debra Mitchell Gass without their effective consent and with the intent to deprive them of the property. The jury found Appellant guilty of theft over $1,500 as alleged in Count I of the indictment. Count II of the indictment alleged that Appellant, pursuant to one scheme and continuing course of conduct, intentionally and knowingly misapplied currency that he held as a fiduciary contrary to law or an agreement under which he held the money and in a manner that involved substantial risk of loss to Lorraine Amezaga, Gina Simental, Dallas Pridgen, Rudy Trujillo, Paul Macias, Jim Burek, Victor, Alonzo, Irma Lopez, Yolanda Valdez, and Debra Mitchell Gass. The jury also found Appellant guilty of misapplication of fiduciary property over $1,500 as alleged in Count II. During the punishment phase, the jury found that Appellant had three prior theft convictions as alleged in the enhancement paragraphs, and the jury assessed his punishment at a fine of $10,000 and imprisonment for a term of 15 years and six months.

SUFFICIENCY OF THE EVIDENCE

Appellant raises two issues challenging the legal and factual sufficiency of the evidence supporting his misapplication of fiduciary property and theft convictions.

Standards of Review

In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must review all the evidence, both State and defense, in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000). We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. Further, the standard of review is the same for both direct and circumstantial evidence cases. Geesa, 820 S.W.2d at 158.

In reviewing factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004), the Court of Criminal Appeals clarified the factual sufficiency standard and linked the appellate standard of review to the beyond a reasonable doubt burden of proof. There is only one question to be answered in a factual sufficiency review:

Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Zuniga, 144 S.W.3d at 484. However, there are two ways in which the evidence may be insufficient. Id. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. Id. at 485. This standard acknowledges that evidence of guilt can preponderate in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Id. Stated another way, evidence supporting guilt can outweigh the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard. Id. In performing this review, we are to give due deference to the jury verdict, as well as to determinations involving the credibility and demeanor of witnesses. Zuniga, 144 S.W.3d at 481.

Elements of Misapplication of Fiduciary Property

A person commits an offense if he intentionally, knowingly, or recklessly misapplies property he holds as a fiduciary in a manner that involves substantial risk of loss to the owner of the property or to a person for whose benefit the property is held. Tex.Penal Code Ann. 32.45(b)(Vernon Supp. 2005). Misapply means deal with property contrary to: (A) an agreement under which the fiduciary holds the property; or (B) a law prescribing the custody or disposition of the property. Tex.Penal Code Ann. 32.45(a)(2). The term substantial risk of loss means that a real possibility of loss exists and that the risk of loss is a positive possibility and more likely than not. Dwyer v. State, 836 S.W.2d 700, 702 (Tex.App.--El Paso 1992, pet. ref d).

Analysis

In both Issues One and Two, Appellant concedes that the evidence established that he was a fiduciary but he contends that the State failed to prove by legally or factually sufficient evidence that he intentionally, knowingly, or recklessly misapplied the money given to him by the complainants. He argues that there is no evidence that he kept the money for himself and it is possible that the companies he worked with might have some of the money.

Various complainants testified that they gave Appellant money to repair their credit or as a downpayment on the purchase of a home or vehicle. Appellant did not apply the money for these purposes but instead utilized it for himself and others. The evidence at trial included an audio-taped statement given by Appellant to Detective Stephen Happ who attempted to ascertain what Appellant had done with the money he collected from the complainants. When asked whether his friend Mary Lou Gasca had received any of the money, he stated he had only given her gas money. Appellant told Happ that he spent some of the money he had taken from the victims [j]ust to get things like to go out or to pay other people. He explained that he repaid some people out of the money he collected from others. When asked if there was any money left, he stated, No. I had about $50 left. I spent some last night. Appellant made similar admissions to the complainants when he explained that he could not return their money because he had spent, lost, or wasted it.

Taken in the light most favorable to the verdict, Appellant s admissions to Detective Happ and the complainants are sufficient for a rational trier of fact to find beyond a reasonable doubt that Appellant intentionally, knowingly, and recklessly misapplied the fiduciary property entrusted to him for the purposes of credit repair and downpayments when he spent the money to go out, give a friend gas money, and to repay other victims. See Huett v. State, 970 S.W.2d 119, 125 (Tex.App.--Dallas 1998, no pet.)(evidence was sufficient to support conviction of misapplication of fiduciary property, even though defendant claimed she was a pawn of her husband; testimony showed that investment was used by defendant for a great number of personal expenditures unrelated to oil lease business, including house and car payments, grocery shopping, and clothing purchases).

We also understand Appellant to argue that his personal use of the money did not create a substantial risk of loss. The term substantial risk of loss means that there must be a real possibility of loss, that the risk of loss is a positive possibility and is more likely than not. Casillas v. State, 733 S.W.2d 158 (Tex.Crim.App. 1986). As we have already noted, the evidence established that Appellant used the money not only for his personal use but to repay other victims for whom he had not performed the promised services. Appellant took money from several victims in the fall and early winter of 2001. When these complainants confronted Appellant, he said that he did not have the money and admitted that he had a problem. He even gave them the name of a detective to call. Despite this knowledge, he continued to take money from other complainants in 2002. Even after Appellant was confronted by the police at Lorraine Amezaga s home in February 2002 and forced to give her a partial refund, he continued to take money for services he did not provide. At the time Appellant gave his statement to Detective Happ, he had spent all but $50 of the complainants money. A rational trier of fact could find beyond a reasonable doubt that Appellant s continued acceptance of money from the complainants, knowing he could not or would not perform the promised services, and his use of the money to satisfy other financial obligations, presented a real and positive possibility of loss of those funds. See Dwyer v. State, 836 S.W.2d 700, 702 (Tex.App.--El Paso 1992, pet. ref d)(evidence supported conviction for misapplication of fiduciary property, where defendant-accountant knew of severe cash shortages, yet continued to accept utility payments from customers and applied payments to satisfy other financial obligations rather than forwarding payments to public utility for credit to respective customers; jury could have found that defendant's actions created real and positive possibility of loss of the funds). For the foregoing reasons, we conclude that Appellant s conviction of misapplication of fiduciary property is supported by legally sufficient evidence.

We have also considered the foregoing arguments without viewing the evidence in the light most favorable to the verdict. Contrary to Appellant s assertions, there is considerable evidence that Appellant used the money entrusted by the complainants to him for personal expenditures and to satisfy other financial obligations rather than applying the funds for the agreed purposes. Appellant told Detective Happ that he had tried to get loans through lenders. Appellant found one company in Florida through the internet, but that company would not do business with him because he did not have a license. He also made the following statement:

I sent information on some companies that requested like $25, $100, whatever. Either some would respond or some would send me information, but it wasn t what it appeared to me. In other words, I was seeking. I couldn t do it here, so I was seeking and I had spent the money.

While this constitutes some evidence that Appellant spent these relatively small sums of money in an effort to find lenders, this does not entirely account for how he expended the large amounts of money entrusted to him by the complainants. The jury could have reasonably given substantial weight to Appellant s admissions that he wasted, lost, and spent the money. We conclude that the evidence is factually sufficient to prove that Appellant misapplied the fiduciary property. Further, the evidence is factually sufficient to prove the substantial risk of loss element. Appellant s continued acceptance of money from the complainants, knowing he could not or would not perform the promised services, and his use of the money to satisfy other financial obligations, made it more likely than not that the funds would be lost. See Dwyer, 836 S.W.2d at 702.

Elements of Theft

A person commits the offense of theft when he unlawfully appropriates property with intent to deprive the owner of property. Tex.Penal Code Ann. 31.03(a). Appropriation of property is unlawful if it is without the owner s effective consent. Tex.Penal Code Ann. 31.03(b)(1). Consent is not effective if induced by deception or coercion. Tex.Penal Code Ann. 31.01(3). Deception means, among other things, 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. Tex.Penal Code Ann. 31.01(1)(E); King v. State, 174 S.W.3d 796, 810 (Tex.App.--Corpus Christi 2005, pet. ref d). Deprive means to withhold property from the owner permanently, or to dispose of property in a manner that makes recovery of the property by the owner unlikely. Tex. Penal Code Ann. 31.01(2)(A), (C). The intent to deprive is determined from the words and acts of the accused. Griffin v. State, 614 S.W.2d 155, 159 (Tex.Crim.App.1981); King, 174 S.W.3d at 810.

Analysis

With respect to his theft conviction, Appellant argues that the State failed to prove beyond a reasonable doubt that he appropriated money from the complaining witnesses without their effective consent since the complainants willingly gave the money to him and there was some evidence that he intended to perform the services. Appellant relies on the same evidence to argue that he did not have an intent to deprive the complainants of their property.

Appellant makes much of Detective Happ s testimony that he believed Appellant intended to somehow make these loans work out even though he probably knew he couldn t. But Appellant told Happ during the interview that he had gone back into the loan brokering business after he got out of jail for committing the same type of offense because he could not stop. He had returned to loan brokering with the original intentions to do it the right way but that it did not happen that way. Appellant initially attempted to obtain loans for some of his customers but the companies would not work with him because he did not have a license. Despite this knowledge, Appellant continued to promise to perform services for his complainants and accept their money when he knew that he could not perform the services, and he continued to spend their money for his own personal use and to satisfy other financial obligations. When the evidence is taken in the light most favorable to the verdict, a rational trier of fact could conclude beyond a reasonable doubt that the complainants consent was based on deception as defined in Section 31.01(1)(E), and therefore, was not effective. This same evidence supports the jury s finding that Appellant intended to deprive the complainants of their property.

Appellant makes the same arguments in connection with his factual sufficiency complaint. We have conducted a neutral review of the evidence and find that it is factually sufficient to permit a rational trier of fact to conclude beyond a reasonable doubt that the complainants consent was not effective because it was based on deception. We also conclude that the evidence is factually sufficient to support a finding that Appellant acted with an intent to deprive the complainants of their property. Having found the evidence both legally and factually sufficient to support the misapplication and theft convictions, we overrule Issues One and Two. The judgment of the trial court is affirmed.

May 4, 2006

ANN CRAWFORD McCLURE, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)