Dondre Johnson v. The State of Texas Appeal from Criminal District Court No. 1 of Tarrant County (memorandum opinion )

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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-15-00357-CR DONDRE JOHNSON APPELLANT V. THE STATE OF TEXAS STATE ---------FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY TRIAL COURT NO. 1415600R ---------- OPINION A jury convicted Appellant Dondre Johnson of two counts of theft of property of the value of $1,500 or more but less than $20,000 and assessed his punishment at two years’ confinement in a state jail and a ten-thousand dollar fine in each case. The trial court sentenced him accordingly, with the sentences running concurrently. In four points, Appellant challenges the sufficiency of the evidence to support his theft convictions, complains that the State improperly commented on his failure to testify, contends that the trial court violated his Sixth Amendment right to counsel by denying him his counsel of choice and interfering with an established attorney-client relationship, and argues that one judgment should be modified to delete the $10,000 fine because his sentences are concurrent. Because the evidence is insufficient to support Appellant’s two theft convictions, we reverse the trial court’s judgments and enter a verdict of acquittal on both counts. Background Facts Appellant was married to Rachel Hardy, who owned and operated Johnson Family Mortuary (Rachel Johnson d/b/a Johnson Family Mortuary) (“the funeral home” or “the mortuary”). Appellant worked for Hardy at the funeral home. The business practices were abominable. Hardy also ran a tax business, Rachel J. Hardy d/b/a Mighty Dollar Tax Refund Service. She freely comingled personal funds with business funds from her businesses. Bill-paying was haphazard and sporadic. The rent for the building housing the funeral home was $3,500 per month. Jim Labenz bought the property in February 2014, the funeral home’s lease was due to expire soon thereafter, and Labenz was negotiating a new lease that included a $100 per month increase in the monthly rent. The funeral home paid $3,000 of the March 2014 rent to the previous owner, who did not deliver the payment to Labenz for some time. Because he had not received the rent due him, Labenz served an eviction notice at the funeral home on May 28, 2014. Appellant went to Labenz’s office the following day and promised that the funeral 2 home would pay the rent. When the funeral home failed to timely make its rent payment, Labenz changed a lock on the property. But he changed the lock on only one of four doors. The funeral home then paid Labenz the April rent on June 11, 2014, and he allowed the funeral home employees back into the building, but the funeral home still owed back rent. No one paid the May rent. By mid-July 2014, no one had paid any more rent. Because of a lack of activity around the funeral home and concern that Johnson Family Mortuary had abandoned the property based on its failure to pay, Labenz and his two business partners returned to the property. As they approached the building, they could smell a bad odor. One of the partners, a former firefighter, stated that the smell was from “some sort of decomposing body.” When they went inside, they saw several bodies in the back of the building. They left the building to get away from the stench and called the police. The police found many bodies that had not been embalmed or refrigerated and that were in various stages of decomposition as well as ashes. The record shows that the funeral home had a history of holding bodies for months, sometimes more than a year, before finally cremating them. The crematorium the funeral home used began accepting only cash from the funeral home because the funeral home had left an infant’s body in the crematorium’s refrigerated storage for five months before paying for the cremation. The record also shows a near-total disregard for laws and customs in running the funeral home. The Texas Occupation Code requires every funeral 3 home to have a licensed funeral director in charge (FDIC) who is legally responsible for the day-to-day operations of any funeral home and to file his or her name and license with the Texas Funeral Service Commission.1 Although Appellant was not a licensed FDIC, he regularly performed the functions of an FDIC. The FDIC is required to obtain a death certificate no later than ten days after the date of death.2 Further, the Texas Administration Code requires a funeral director to obtain an electronically filed report of death through a Vital Statistics Unit system or complete a report of death before transporting the body. The report of death shall within 24 hours be mailed or otherwise transmitted to the Local Registrar of the district in which the death occurred or in which the body was found.3 The funeral home briefly hired an FDIC but then used his license and password to obtain death certificates and other necessary documents even after he left the funeral home. The State points out that lengthy delays in obtaining the necessary documents were not unusual for Appellant and the Johnson Family Mortuary. The mortuary routinely waited days or even weeks to file a report of death, and often went months before they completed the process to obtain a death certificate. 1 See Tex. Occ. Code Ann. § 651.403 (West 2012). 2 See Tex. Health & Safety Code Ann. § 193.002 (West 2010), § 193.003 (West Supp. 2016). 3 25 Tex. Admin. Code Ann. § 181.2(a) (West 2015) (Tex. Dep’t of Health Servs., Assuming Custody of Body). 4 The State also notes in its brief that “in 2013, an infant was not cremated for more than a year and a half” and that “[d]elays between several weeks and up to six months were not uncommon.” The theft counts in this case are based on the handling of four bodies; the complainants are the family members, including a family member’s business, who contributed money for the services the funeral home was to have provided. Count One of the indictment charged Appellant with theft from Margaret Francois of property, to wit money, of $1,500 or more but less than $20,000, related to the agreement for the handling of the body of Patricia Baptiste. Count Two charged him with theft of money from eight complainants: Michelle Jones, Tony Jones, Connie Mabry, Little Texas, Eric Jones, and Lana Adewusi, who all contributed to the $3,025 paid the funeral home for “full service” arrangements for the body of Michelle’s mother, Karen Pearl Jones; Desiree Williams, who paid the funeral home $300 for a memorial service and cremation for her infant son; and Fred Jones, who along with relatives paid and arranged for the funeral home to perform a wake, funeral, and cremation for his mother, Helen Jones. In his first point, Appellant contends that the evidence is insufficient to support his theft convictions stemming from both Count One and Count Two. Sufficiency of the Evidence Standard of Review In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to 5 determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.4 This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.5 The trier of fact is the sole judge of the weight and credibility of the evidence.6 Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder.7 Instead, we determine whether the necessary inferences are reasonable based upon the cumulative force of the evidence when viewed in the light most favorable to the verdict.8 We must presume that the factfinder resolved any conflicting inferences in favor of the verdict and defer to that resolution.9 4 Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). 5 Id.; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied, 136 S. Ct. 198 (2015). 6 See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). 7 See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). 8 Murray, 457 S.W.3d at 448. 9 Id. at 448–49. 6 The standard of review is the same for direct and circumstantial evidence cases; circumstantial evidence is as probative as direct evidence in establishing guilt.10 Substantive Law of Theft A person commits theft if the person (1) unlawfully appropriates (2) property (3) with the intent to deprive (4) the owner of the property.11 An appropriation of property is unlawful if it is without the owner’s effective consent.12 Consent is not effective if it is induced by deception or coercion.13 To deprive is “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.”14 Deception is defined as (A) creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true; (B) failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the 10 Dobbs, 434 S.W.3d at 170; Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014). 11 See Tex. Penal Code Ann. § 31.03(a) (West Supp. 2016); Price v. State, 456 S.W.3d 342, 346 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d). 12 See Tex. Penal Code Ann. § 31.03(b)(1) (West Supp. 2016); Price, 456 S.W.3d at 346. 13 See Tex. Penal Code Ann. § 31.01(3) (West Supp. 2016); Price, 456 S.W.3d at 346. 14 Tex. Penal Code Ann. § 31.01(2)(A) (West Supp. 2016). 7 actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true; (C) preventing another from acquiring information likely to affect his judgment in the transaction; ...; (E) 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.15 The case now before this court is different from most theft cases in that it is based on contractual obligations. If theft occurs in connection with a contract, there must be proof that the defendant intended not to perform under the contract when he accepted the money for the performance or goods and, consequently, that the appropriation was the result of a false pretext, or fraud, and that the person intended to deprive the owner of the property when the property was taken; proof of a mere subsequent breach of contract will not suffice.16 That is, every breach of contract does not provide the basis for a criminal prosecution for theft. This is consistent with the difference between fraud and breach of contract in the civil context: “Failure to perform, standing alone, is no evidence of the 15 Id. § 31.01(1). 16 See Taylor v. State, 450 S.W.3d 528, 536 (Tex. Crim. App. 2014); Wirth v. State, 361 S.W.3d 694, 698 (Tex. Crim. App. 2012); Price, 456 S.W.3d at 346. 8 promissor’s intent not to perform when the promise was made.”17 A breach of contract may be just a breach of contract. A deceptive trade practice may be simply a civil deceptive trade practice. But, as the State points out in its brief, “[t]he fact that partial or even substantial work has been done on a contract will not invariably negate either the intent to deprive or the deception necessary to establish the unlawfulness of the initial appropriation.”18 A contractor may still be convicted of theft under circumstances—to be sure, circumstances beyond the mere “failure to perform the promise in issue”—in which a rational fact-finder could readily conclude that he never intended, even at the outset, to perform fully or satisfactorily on the contract, and always harbored the requisite intent or knowledge to deceive his customer and thereby deprive him of the value of at least a substantial portion of the property thus unlawfully appropriated.19 Conversely, the amount of work performed can negate the intent to unlawfully deprive the complainant of the property at the time the contract was formed.20 Count One: Francois Sufficiency of the Evidence of Theft from Margaret Count One charged that Appellant “did . . . unlawfully appropriate, by acquiring or otherwise exercising control over property, to wit: money, of the value of $1,500 or more, but less than $20,000, with intent to deprive the owner, 17 Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 435 (Tex. 1986). 18 See Taylor, 450 S.W.3d at 537. 19 Id. 20 Ehrhardt v. State, 334 S.W.3d 849, 855 (Tex. App.—Texarkana 2011, pet. ref’d). 9 Margaret Francois, of the property.” Francois paid Johnson Family Mortuary $1,500 by cashier’s check, which she said she gave to Appellant on July 6, 2014, for the cremation of her aunt, Patricia Baptiste, who died June 30, 2014. Both the receipt and the cashier’s check were dated July 7, 2014. Francois’s brother was concerned that they would receive the wrong ashes, and he told her he wanted to be present at the cremation. When Francois told Appellant that her brother wanted to be present, Appellant told her that there would be an additional charge. She testified that she immediately abandoned that idea and told Appellant that they would not view the cremation. The funeral home attempted to enter a report of death for Baptiste on July 1, 2014, using the former FDIC’s number, but the system would not accept the information. The FDIC had resigned, and his number had been removed from the system. Baptiste had not been cremated when her body was discovered July 15, 2014. Appellant told investigators that Baptiste had not been cremated because he was waiting for Francois to make an extra payment so her brother could view the cremation. Appellant argues that the evidence is insufficient to support the guilty verdict in Count One because he was charged with appropriation of the cash and not the check. The evidence shows that he possessed the check from Francois, not cash. The check was made out to and deposited in the account of Johnson Family Mortuary. Had the check been made out to Appellant, and had he negotiated the check, he obviously would have exercised control over the 10 money.21 But the evidence shows that Appellant was not a signatory on the funeral home account. He was not an owner of Johnson Family Mortuary. He argues that the check represented to him just that—a check over which only his wife could have exercised control. Proof of appropriation of a check is not proof of appropriation of money unless there is also proof that the accused negotiated the check.22 Therefore, Appellant’s argument continues, even though he possessed the check, which went through his hands, he in no way controlled the $1,500 that he is alleged to have stolen from Francois. Appellant concludes that there is insufficient evidence of appropriation as to Count One and that this Court should reverse the trial court’s judgment as to that count and order an entry of acquittal. The State argues that even if Appellant is not guilty as a principal, he is guilty as a party.23 But if he is guilty as a party, there must be evidence of wrongdoing on his wife’s part.24 That is, there must be evidence of Hardy’s guilt of taking the $1,500 from Francois intending at the time not to perform the 21 See Tex. Penal Code Ann. § 31.01(4)(B) (West Supp. 2016) (providing that one definition of “appropriate” is “to acquire or exercise control over property”). 22 See Orr v. State, 836 S.W.2d 315, 319 (Tex. App.—Austin 1992, no pet.) (acquitting Orr when money orders were made out not to him but to a company and there was no evidence that they were cashed or negotiated). 23 See Tex. Penal Code Ann. § 7.02(a) (West 2011). 24 See id. 11 services the $1,500 fee was to pay for. We have searched the record and failed to find evidence of Hardy’s guilt, and consequently of Appellant’s guilt as a party, that would allow a rational jury to find the evidence sufficient to support Appellant’s guilt beyond a reasonable doubt. The record reflects that, as the State argues, Appellant handled the day-to-day operations while his wife dealt mostly with accounts. But Appellant was an employee of the funeral home, not its owner. Hardy, although she was the owner, became less actively involved in the daily business of the mortuary as the years passed, and particularly in the four months before the police interviewed her in July 2014 because she gave birth to the couple’s baby in 2014. John Nganga, who had been licensed as a provisional funeral director, but not as a funeral director who could work without supervision, testified that he did work for the funeral home, picking up bodies, and he showed Appellant how to perform the computer entries for the necessary paperwork. Nganga testified to the names of FDICs whose log-in names he had used at the funeral home. He also testified that Appellant did most of the work at the funeral home and that after the first year, Appellant’s wife was rarely there. He explained that she had “put the money in” to open the funeral home. In the trial court, the State argued only that Parties. If Dondre Johnson took that money knowing the people weren’t going to be cremated, there’s ample evidence of that. And Rachel Hardy did something with that money, he’s still a party to the offense. He knows at the time of the deprivation of the taking of the money that he’s not going to fulfill it. He and his wife—he and 12 his wife, Johnson Family Mortuary are not going to fulfill the terms of their contract. The State appears to suggest that because Hardy “did something with that money,” it is proper to infer that the “something” she did was to appropriate the money and we must infer that she did so intending that the body not be cremated. The Texas Court of Criminal Appeals has discussed the proper use of inferences and presumptions, explaining, Under the Jackson test, we permit juries to draw multiple reasonable inferences as long as each inference is supported by the evidence presented at trial. However, juries are not permitted to come to conclusions based on mere speculation or factually unsupported inferences or presumptions. To correctly apply the Jackson standard, it is vital that courts of appeals understand the difference between a reasonable inference supported by the evidence at trial, speculation, and a presumption. A presumption is a legal inference that a fact exists if the facts giving rise to the presumption are proven beyond a reasonable doubt. For example, the Penal Code states that a person who purchases or receives a used or secondhand motor vehicle is presumed to know on receipt that the vehicle has been previously stolen, if certain basic facts are established regarding his conduct after receiving the vehicle. A jury may find that the element of the offense sought to be presumed exists, but it is not bound to find so. In contrast, an inference is a conclusion reached by considering other facts and deducing a logical consequence from them. Speculation is mere theorizing or guessing about the possible meaning of facts and evidence presented. A conclusion reached by speculation may not be completely unreasonable, but it is not sufficiently based on facts or evidence to support a finding beyond a reasonable doubt. As stated above, juries are permitted to draw multiple reasonable inferences from the evidence (direct or circumstantial), but they are not permitted to draw conclusions based on 13 speculation. Without concrete examples, it can be difficult to differentiate between inferences and speculation, and between drawing multiple reasonable inferences versus drawing a series of factually unsupported speculations. This hypothetical might help clarify the difference. A woman is seen standing in an office holding a smoking gun. There is a body with a gunshot wound on the floor near her. Based on these two facts, it is reasonable to infer that the woman shot the gun (she is holding the gun, and it is still smoking). Is it also reasonable to infer that she shot the person on the floor? To make that determination, other factors must be taken into consideration. If she is the only person in the room with a smoking gun, then it is reasonable to infer that she shot the person on the floor. But, if there are other people with smoking guns in the room, absent other evidence of her guilt, it is not reasonable to infer that she was the shooter. No rational juror should find beyond a reasonable doubt that she was the shooter, rather than any of the other people with smoking guns. To do so would require impermissible speculation. But, what if there is also evidence that the other guns in the room are toy guns and cannot shoot bullets? Then, it would be reasonable to infer that no one with a toy gun was the shooter. It would also be reasonable to infer that the woman holding the smoking gun was the shooter. This would require multiple inferences based upon the same set of facts, but they are reasonable inferences when looking at the evidence. We first have to infer that she shot the gun. This is a reasonable inference because she is holding the gun, and it is still smoking. Next, we have to infer that she shot the person on the floor. This inference is based in part on the original inference that she shot the gun, but is also a reasonable inference drawn from the circumstances. Inference stacking is not an improper reasoning process; it just adds unnecessary confusion to the legal sufficiency review without adding any substance. Rather than using the language of inference stacking, courts of appeals should adhere to the Jackson standard and determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict.25 25 Hooper v. State, 214 S.W.3d 9, 15–17 (Tex. Crim. App. 2007) (citations and footnotes omitted). 14 The State does not direct us to any evidence in the record that supports its position that Appellant acted as a party to his wife’s wrongdoing. We have searched the record and have not been able to locate such evidence. For example, we found no written contracts that would have shown Appellant’s wife what services he had agreed that the funeral home would perform when he accepted the check on behalf of the funeral home. Additionally, the record does not show evidence of an intent on the part of either Appellant or his wife not to perform the cremation at the time Appellant accepted the check. Francois entered into the contract with the funeral home by tendering the cashier’s check payable to Johnson Family Mortuary on the afternoon of July 7, 2014. Her aunt’s body was discovered on July 15, 2014, only eight days later. The dissent is understandably upset by the facts of this case and urges us to “hold that appellant appropriated the cashier’s check and the underlying money the cashier’s check represented.”26 The dissent’s urging, however, is based on an erroneous view of commercial paper law. Under Texas’s enactment of the Uniform Commercial Code, a check is defined as a draft signed by the drawer, drawn on a bank and payable on demand, containing an unconditional promise or order to pay a sum certain in money. It is not money.27 In this case, the check was a cashier’s check by which the issuing bank promised to pay to 26 Dissenting Op. at 4. 27 See Tex. Bus. & Com. Code Ann. § 3.104 (West Supp. 2016). 15 the Johnson Family Mortuary the sum of $1,500 upon demand. The penal code states that an owner “is a holder in due course of a negotiable instrument.”28 A holder of a negotiable instrument is a “person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession.”29 A holder in due course must be a holder or have a security interest in the instrument.30 When Appellant possessed the check, he did not possess the $1,500. He “was in possession of a piece of paper worth, at the most, pennies.”31 As the Heimlich court explained, when a person works for a law firm (the court’s example involved an attorney working as an independent contractor), the obligation to the client to perform the services and the right to payment belong not to the attorney performing the services but to the firm. The firm then compensates the attorney.32 Similarly, even though a secretary of the law firm accepts a check for the law firm and performs services for the client, the law firm alone is responsible for the performance of the services contracted for and the law firm alone owns the right to payment for the services. Here, Appellant was 28 Tex. Penal Code Ann. § 1.07(a)(35)(B) (West Supp. 2016). 29 Tex. Bus. & Com. Code Ann. § 1.201(21)(A) (West Supp. 2016). 30 Id. § 3.302(a), (e). 31 Heimlich v. State, 988 S.W.2d 382, 385 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). 32 Id. at 387. 16 an employee of the funeral home. The cashier’s check was payable only to the funeral home and of no significant value except to the funeral home. The obligation to perform the contract with Francois was the obligation of the funeral home. Applying the appropriate standard of review, we hold that the evidence is insufficient to support the jury’s verdict as to Count One of the indictment. Count Two: Sufficiency of the Evidence of Theft from Michelle Jones, Tony Jones, Connie Mabry, Little Texas, Eric Jones, Lana Adewusi, Desiree Williams, and Fred Jones Relevant Facts Count Two charged that Appellant did then and there unlawfully appropriate, by acquiring or otherwise exercising control over property, to-wit: money, of the value of $1,500 or more, but less than $20,000, with intent to deprive the owners, listed below, of the property, and all the said property was obtained pursuant to one scheme or continuing course of conduct which began on or about the 27th day of March 2014, and continued until on or about the 6th day of May, 2014, and the owners of said property are as follows: Michelle Jones Tony Jones Connie Mabry Little Texas Eric Jones Lana Adewusi Desiree Williams Fred Jones The allegations concerning complainants Michelle Jones, Tony Jones, Connie Mabry, Little Texas, Eric Jones, and Lana Adewusi relate to the agreement for the arrangements for the body of Karen Pearl Jones; the 17 allegations concerning complainant Desiree Williams relate to the agreement for the arrangements for the body of her infant son; and the allegations concerning complainant Fred Jones concern the agreement for the arrangements for the body of Helen Jones. Appellant admits that he received cash from the Count Two complainants and that he agreed to perform services in addition to cremation. He also performed some services. He therefore argues that the evidence is insufficient to show that he intended to steal from the complainants when he entered into the agreements. Michelle Jones and Family Karen Pearl Jones died March 26, 2014. After her mother died, Michelle and her aunt Lana paid Appellant $3,025 in cash for embalming, a wake, a memorial service, and cremation. Michelle had collected money from family members she had asked to contribute to the bill because her mother’s insurance was not enough to cover the expenses and Michelle could not pay the balance herself. Appellant obtained a death certificate on April 7, 2014. He never secured the necessary documents for cremation. The funeral home provided a wake and a memorial service with an open casket. Appellant gave Michelle ashes that he represented were those of Karen Pearl Jones. But her body was found in the mortuary garage in July 2014. The ashes he had given Michelle were determined to be those of a woman who had died two years earlier. 18 Desiree Williams On Thursday, May 6, 2014, Desiree Williams, the mother of a premature baby who died the day he was born, May 1, 2014, paid Appellant three hundred dollars in cash for a cremation and funeral service. Appellant performed a funeral service for the infant and gave Williams’s husband ashes after repeated inquiries from Williams and her husband, but the baby had not been cremated when Labenz discovered the decomposing remains of several bodies in mid-July 2014. The baby’s remains were found in a plastic storage bin in the mortuary garage. Appellant had given the Williamses another baby’s ashes. Fred Jones After Helen Jones, Fred Jones’s mother, died in April 2014, he paid Appellant $2,800 in cash for a wake, a memorial service, and cremation of his mother. The funeral home provided the wake and the memorial service with an open casket. But Helen Jones had not been cremated when her remains were discovered in the mortuary more than three months after she died. Application of the Law to the Facts In every situation covered by Count Two, Appellant performed part of the contract. Memorial services and wakes were held for Karen Pearl Jones and Helen Jones. A funeral service was held for the Williams infant. Every body in the funeral home’s custody that was not cremated or buried was still being held by the funeral home, although in unspeakable condition. All the complainants had dealt with Appellant as the representative of the funeral 19 home. Nevertheless, Appellant’s pattern of behavior did not indicate an intent not to cremate the bodies at the time he received payment for those services. Rather, he repeatedly delayed sending the bodies for cremation. Clearly, at the time the police arrived at the mortuary, the mortuary had not completed all the services for which it had been paid. But there is no indication of deception other than the fact that we can assume the family members expected the funeral home to do its job in a workmanlike and timely manner, and it did not do so. For example, the evidence shows that even after the FDIC left the funeral home, the funeral home continued to use his identification and password to complete necessary paperwork. As a further example, on July 1, 2014, there was an attempt to complete the paperwork necessary to begin the cremation process for Patricia Baptiste, the deceased person related to the complainant in Count One. The record reflects a history of problems with necessary paperwork, and long delays in completing mortuary services. But there is no evidence of an intent never to perform the services. Intent may be inferred from the surrounding circumstances.33 But the evidence must show that the defendant intended to deprive the owner of the property, the money paid for cremation in this case, at the time it was taken.34 33 See Price, 456 S.W.3d at 346. 34 See Wirth, 361 S.W.3d at 697; see also Phillips v. State, 640 S.W.2d 293, 294 (Tex. Crim. App. [Panel Op.] 1982) (holding that absent any evidence of deception by false impression of law or fact, contractor who failed to perform 20 Although the State did prove unconscionable behavior on behalf of Appellant and the funeral home and Appellant’s repeated lies to cover up this behavior, the State failed to prove an intent to perform only part of the services contracted for at the time Appellant received the money on behalf of the funeral home. We therefore hold that the evidence is insufficient to sustain Appellant’s conviction on Count Two. Conclusion Having held the evidence insufficient to support Appellant’s convictions on both counts, we sustain his first point, which is dispositive of the entire case. We therefore do not address his remaining points.35 Because we hold that the evidence is insufficient to support Appellant’s theft convictions, we reverse the trial court’s theft judgments and render a verdict of acquittal on both theft counts. /s/ Lee Ann Dauphinot LEE ANN DAUPHINOT JUSTICE PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ. LIVINGSTON, C.J., dissents with opinion. PUBLISH DELIVERED: December 8, 2016 contract to build home addition was not guilty of theft but merely failure to perform the contract). 35 See Tex. R. App. P. 47.1. 21

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