Billy R. Higginbotham, Jr. v. State
356 S.W.3d 584
| Tex. App. | 2011Background
- Higginbotham contracted to build Huff and Wifes' log home for $228,919.00 and submitted eight draws totaling $211,450.20.
- Higginbotham did not substantially complete construction on the house.
- Huff borrowed an additional $100,000 to finish the house and performed some work himself.
- Higginbotham was charged with theft of over $1,500 but less than $20,000; the jury found him guilty of the lesser-included offense of theft over $1,500 but less than $20,000.
- A cabinet down payment of $9,280 was in dispute; Huff testified the cabinets were not paid for and were not delivered.
- The extraneous-offense testimony concerned a separate $7,500 draw claimed to be for a retaining wall but allegedly applied to other expenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence for theft | State argued misrepresentation and unlawful appropriation tied to payments; contract context supports theft. | Higginbotham claimed liability rests on poor workmanship, not theft; disputed intent and consent conduct. | Sufficient evidence supports theft in the $1,500–$20,000 range. |
| Admission of extraneous-offense evidence | State contends extraneous-offense evidence need not be proven beyond a reasonable doubt at guilt phase. | Higginbotham argues extraneous-offense evidence (the $7,500 transfer) was not proven beyond a reasonable doubt. | York's extraneous-offense testimony was not proven beyond a reasonable doubt and was error. |
Key Cases Cited
- Baker v. State, 986 S.W.2d 271 (Tex.App.-Texarkana 1998) (theft in contract requires more than misperformance; intent to deprive must be proven)
- McClain v. State, 687 S.W.2d 350 (Tex.Crim.App.1985) (consent can be ineffective if obtained by deception)
- Ehrhardt v. State, 384 S.W.3d 849 (Tex.App.-Texarkana 2011) (reaffirms that criminal intent can be formed after contract formation)
- Jacobs v. State, 230 S.W.3d 225 (Tex.App.-Houston [14th Dist.] 2006) (to prove theft in contract, defendant must lack entitlement to money beyond dispute)
- Harrell v. State, 884 S.W.2d 154 (Tex.Crim.App.1994) (extraneous-offense evidence at guilt phase must be proven beyond a reasonable doubt)
- Fischer v. State, 268 S.W.3d 552 (Tex.Crim.App.2008) (consideration of extraneous evidence may include trial evidence even if pretrial proffer lacking)
- Morales v. State, 32 S.W.3d 862 (Tex.Crim.App.2000) (framework for assessing harm from improper extraneous-offense evidence)
- Gamboa v. State, 296 S.W.3d 574 (Tex.Crim.App.2009) (instructions to the jury can mitigate error from improper evidence)
- Motilla v. State, 78 S.W.3d 352 (Tex.Crim.App.2002) (harm-analysis factors for nonconstitutional error)
- George v. State, 890 S.W.2d 73 (Tex.Crim.App.1994) (extraneous-offense evidence at guilt phase must be proven beyond a reasonable doubt)