Kent, Kevin Lavelle
2016 Tex. Crim. App. LEXIS 37
| Tex. Crim. App. | 2016Background
- Kevin Lavelle Kent, a mortgage broker, was indicted for theft of over $200,000 from four named complainants, alleged as part of one scheme or continuing course of conduct under Tex. Penal Code § 31.09.
- A jury found Kent guilty; the trial court sentenced him to 60 years’ imprisonment and ordered restitution to the complainants.
- On direct appeal the court of appeals reversed and remanded, holding the jury charge was erroneous because it failed to require juror unanimity as to which complainant/property each juror found was stolen (the indictment listed owners in the disjunctive).
- The State sought discretionary review, arguing (1) the appellant’s proposed unanimity application paragraph was unauthorized and legally incorrect, (2) unanimity as to each underlying transaction is not required in aggregate-theft cases, and (3) any unanimity error was not harmful because the defense did not hinge on isolating individual transactions.
- The Court of Criminal Appeals considered whether aggregated theft under § 31.09 creates one offense such that jurors need only unanimously find the aggregated threshold and not the same specific theft instances.
- The Court reversed the court of appeals, holding that § 31.09 creates one offense and unanimity requires agreement that the threshold amount was reached and that the proven thefts (as each juror perceives them) exceed that amount, but not unanimous agreement on every specific underlying theft.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Kent) | Held |
|---|---|---|---|
| Whether appellant’s proposed application paragraph was authorized and correct | Proposed paragraph was incorrect and unauthorized; trial charge tracking indictment was proper | Proposed instruction requiring unanimity on each underlying theft was required | Overruled: trial court properly submitted charge that tracked the indictment; appellant’s proposed paragraph not required |
| Whether jurors must unanimously agree on each underlying transaction in aggregated-theft (§31.09) | Aggregated theft is one offense; jurors need not unanimously agree on each specific appropriation as long as aggregate threshold proven | Each individual theft is a distinct unit of prosecution and jurors must unanimously agree on each owner/property stolen from | Held for State: unanimity requires jurors to agree the threshold amount was reached and elements proven for each instance each juror relies on; not necessary every juror agree on the same specific underlying thefts |
| Whether the absence of unanimity instruction caused reversible harm | Any unanimity error was not harmful because defense did not seek to isolate transactions | Jury could have convicted without unanimous agreement as to particular victims, causing actual harm | Court found no reversible unanimity error and dismissed harm ground as moot after resolving unanimity issue |
| Proper legal characterization of §31.09 aggregated conduct | Treat the scheme/continuing course as the culpable behavior creating one offense | Treat each underlying theft as separate gravamina requiring unanimous verdict | Court: §31.09 treats the aggregated scheme as one offense; individual thefts are elements for proof but need not be the identical ones each juror finds occurred as long as aggregate proven unanimously |
Key Cases Cited
- Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App. 2007) (use of grammar test to determine legislative intent for gravamen)
- Jourdan v. State, 428 S.W.3d 86 (Tex. Crim. App. 2014) (discussion of adverbial phrases and unanimity principles)
- Wages v. State, 573 S.W.2d 804 (Tex. Crim. App. 1978) (aggregation under §31.09 creates one offense)
- Weaver v. State, 982 S.W.2d 892 (Tex. Crim. App. 1998) (each aggregated theft is an element for purposes like venue)
- Garza v. State, 344 S.W.3d 409 (Tex. Crim. App. 2011) (recognizing each individual theft as an element in aggregated theft)
- Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012) (theft gravamina: property and ownership)
- Young v. State, 341 S.W.3d 417 (Tex. Crim. App. 2011) (approach to determining gravamen for unanimity)
- Kellar v. State, 108 S.W.3d 311 (Tex. Crim. App. 2003) (indictment need not allege each specific theft when aggregating under §31.09)
- Eastep v. State, 941 S.W.2d 130 (Tex. Crim. App. 1997) (State need not prove each individual appropriation when alleging aggregated amount)