Kent, Kevin Lavelle
PD-1340-14
Tex. App.—WacoMar 3, 2015Background
- Kevin L. Kent was convicted of aggregate theft for obtaining money from Barbara & Tamara Allen and Larry & JoAnn Aniol pursuant to one scheme or continuing course of conduct (May 15, 2003–Mar. 13, 2008); jury assessed 60 years. The court of appeals reversed, holding jurors must unanimously agree on each underlying transaction. This Court granted review.
- The indictment alleged aggregation under Tex. Penal Code § 31.09 without listing each individual theft as a separate offense; aggregate amount exceeded the $200,000 statutory threshold.
- Evidence showed Kent solicited and received hundreds of thousands of dollars from the Allens and Aniols, represented fake financing/escrow arrangements, returned some funds at times, and spent received money on personal items. Kent testified and admitted fabricating documents and receiving the funds.
- At trial Kent requested an application paragraph that listed each discrete deposit/transaction and required unanimity on each; the trial court refused and instructed on aggregate theft as one offense.
- The State argues (1) the requested instruction was not authorized by the indictment and misstated the law (it conjunctively required proof of multiple transactions), (2) Section 31.09 treats the scheme/continuing course as one offense so juror unanimity on each discrete transaction is unnecessary, and (3) any unanimity error was harmless because defense did not hinge on isolating particular transactions.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Kent) | Held |
|---|---|---|---|
| Whether trial court erred in refusing appellant’s proposed application paragraph that enumerated and required unanimity on each underlying transaction | Proposed paragraph was not authorized by the indictment, was an incorrect conjunctive statement of law, and would impose proof of facts not pled | Jury should have been required to unanimously find each individual theft/transaction alleged as constituents of the aggregate theft | Trial court properly refused the requested instruction; the requested formulation was incorrect and inserted unpled elements |
| Whether jurors must unanimously agree beyond a reasonable doubt on each underlying transaction used to comprise an aggregate theft charge under Tex. Penal Code § 31.09 | Section 31.09 treats amounts obtained pursuant to one scheme/continuing course as one offense; individual appropriations need not be proved separately so long as aggregated amount is proved | Each individual theft that composes an aggregated charge is an element requiring unanimity; jurors must unanimously agree on which transactions constitute the offense | Court of appeals erred: § 31.09 allows aggregation into one offense and does not require unanimity on each individual transaction when properly charged as one scheme/continuing course of conduct |
| Whether any unanimity error in the charge harmed appellant (Almanza harm analysis) | Any charge error was not harmful because the jury was instructed to reach a unanimous verdict on the single aggregate offense, evidence was overwhelming, and defense never isolated specific transactions | Lack of transaction-by-transaction unanimity instruction could have led jurors to convict based on different transactions, causing harm | Any purported unanimity error was not harmful; conviction should be affirmed |
Key Cases Cited
- Lehman v. State, 792 S.W.2d 82 (Tex. Crim. App. 1990) (State may aggregate multiple appropriations under § 31.09 and need not prove every individual appropriation beyond the statutory threshold)
- Murchison v. State, 93 S.W.3d 239 (Tex. App.—Houston [14th Dist.] 2002) (proper to instruct jury in the disjunctive for multiple manners/means of a single offense)
- Weaver v. State, 982 S.W.2d 892 (Tex. Crim. App. 1998) (§ 31.09 creates one offense for aggregation purposes; each individual theft aggregated is part of the single offense)
- Schad v. Arizona, 501 U.S. 624 (U.S. 1991) (no constitutional requirement jury agree on a single means of committing an offense; distinct means may nonetheless be separate offenses in some contexts)
- Richardson v. United States, 526 U.S. 813 (U.S. 1999) (statutory text that treats multiple violations as separate elements can require unanimity; distinguished on statutory wording)
- Garza v. State, 344 S.W.3d 409 (Tex. Crim. App. 2011) (aggregate theft; discussion of aggregation and evidentiary owner issues)
- Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011) (proof must correspond to the owner alleged in indictment; name of owner not a substantive element)
- Kent v. State, 447 S.W.3d 408 (Tex. App.—Houston [14th Dist.] 2014) (court of appeals decision reversing conviction on unanimity grounds; review granted)