666 S.W.3d 477
Tex. Crim. App.2023Background
- Appellant Marc Wakefield Dunham, a door-to-door salesman for Capital Connect, visited 81-year-old Eloise Moody at her home where a Central Security Group sign was displayed.
- Dunham spoke of "updating" her security and placing a light on her Central sign, wore no uniform or clear ID, entered her home, and had a technician begin uninstalling/replacing Moody’s system.
- He repeatedly told Moody the new features/installation were "free," but presented a five-year Capital Connect contract with roughly double her prior fees; Moody signed and later canceled.
- Dunham was charged under Tex. Penal Code § 32.42(b) alleging (inter alia) he represented the service as a different company’s, misrepresented price, and made materially false statements.
- Jury convicted; trial court sentenced; court of appeals affirmed. The Court of Criminal Appeals reviewed sufficiency of the evidence and whether the jury charge improperly permitted a non-unanimous verdict on the manner-and-means charged.
Issues
| Issue | State's Argument | Dunham's Argument | Held |
|---|---|---|---|
| Sufficiency under §32.42(b) (meaning of "represent") | Dunham's words and conduct before and during the sale (pointing at Central sign, saying "update," offering free install, permitting technician to rewire) amounted to a representation that he worked for Moody's existing company; "represent" includes pre-contract conduct; evidence supports at least reckless deception under b(7). | He made no affirmative false statement—at worst an omission; he disclosed employment status by signing stage; "represent" should not be read to criminalize pre-contract conduct. | Court: "Represent" includes conduct leading up to and during the transaction; jurors could reasonably find his cumulative words/acts recklessly misrepresented the system; evidence sufficient as to §32.42(b)(7). |
| Jury unanimity as to which subsection/manner-and-means | The statute punishes commission of "one or more of the following" deceptive practices; the prosecution need not prove which specific subsection so long as at least one is proved beyond a reasonable doubt. | Because the statute lists distinct predicate deceptive acts, Dunham argued the jury must unanimously agree on which specific act he committed (a nature-of-conduct offense). | Court: Unanimity not required as to the alternative manners-and-means listed in subsections (1)–(12); those are alternate means, not separate essential elements; verdict need not specify which subsection. |
Key Cases Cited
- Clinton v. State, 354 S.W.3d 795 (Tex. Crim. App. 2011) (defines method for identifying essential elements via the hypothetically correct jury charge)
- Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) (principles on jury-charge construction)
- Ramos v. State, 407 S.W.3d 265 (Tex. Crim. App. 2013) (requirements for an accurate jury charge)
- Curry v. State, 30 S.W.3d 394 (Tex. Crim. App. 2000) (charging instrument may modify statutory elements)
- Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) (circumstantial evidence may alone support conviction and is treated equally to direct evidence)
- Dunham v. State, 554 S.W.3d 222 (Tex. App.—Houston [14th Dist.] 2018) (court of appeals’ interpretation of "represent" as including pre-contract conduct)