554 S.W.3d 222
Tex. App.2018Background
- Defendant Marc Wakefield Dunham, a door-to-door sales rep for Capital Connect, was convicted by a jury of a deceptive business practice under Tex. Penal Code § 32.42 and sentenced to 1 year jail and a $4,000 fine.
- The primary complainant was an ~80-year-old homeowner who had a Central Security Group sign in her yard and an existing monitoring contract with Central.
- Dunham knocked, pointed to the Central sign, said “I’m here to update your security,” did not identify his employer, and obtained entry; he later presented paperwork showing Capital Connect and had the complainant sign a five-year monitoring agreement at a higher cost.
- Recordings and testimony showed the complainant initially believed Dunham worked for Central and that Capital Connect was a separate company; she later canceled the contract.
- The State introduced two uncharged incidents showing similar tactics (pointing to yard signs, wearing ambiguous lanyards, failing to correct homeowners) to prove Dunham’s pattern and mens rea.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Dunham) | Held |
|---|---|---|---|
| Sufficiency of evidence that Dunham "represented" a service was of a different style/brand and acted recklessly | Evidence supports that Dunham’s conduct (pointing to yard sign + “I’m here to update your security”) constituted a representation in the course of business; jury could infer recklessness from his conduct and extraneous acts | He did not represent the system was from Central; any representation was accurate or corrected before contract—complainant knew she was changing to Capital when she signed; lacked reckless mental state | Affirmed. Court held jury could rationally find Dunham made representations by conduct before contract execution and acted recklessly based on circumstantial evidence and prior similar acts. |
| Jury unanimity as to which statutory subsection of §32.42(b) was violated | The statute criminalizes one course-of-business offense with alternative listed deceptive acts; unanimity as to the particular listed act is not required where statute focuses on course of business (circumstances-of-conduct) and uses "one or more of the following" language | Argued jury must be unanimous about the specific statutory manner (subsection) because different subsections can carry different classifications/punishments | Affirmed. Court held §32.42(b) is a circumstances-of-conduct offense; jurors need not unanimously agree on which one-or-more listed deceptive acts supported conviction where the alleged subsections carry the same punishment range. |
Key Cases Cited
- Balderas v. State, 517 S.W.3d 756 (Tex. Crim. App. 2016) (standard for sufficiency review; deference to jury inferences)
- Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) (use of hypothetically correct jury charge to measure sufficiency)
- O’Brien v. State, 544 S.W.3d 376 (Tex. Crim. App. 2018) (unanimity principles; distinguishing nature-of-conduct vs circumstances-of-conduct offenses)
- Young v. State, 341 S.W.3d 417 (Tex. Crim. App. 2011) (framework for identifying gravamen of an offense)
- Jefferson v. State, 189 S.W.3d 305 (Tex. Crim. App. 2006) (grammar-based analysis of statutory elements)
- Williams v. State, 235 S.W.3d 742 (Tex. Crim. App. 2007) (definition of recklessness requires actual foresight of risk)
- Agbogun v. State, 756 S.W.2d 1 (Tex. App.—Houston [1st Dist.] 1988) (example of §32.42(b)(7) sufficiency: mislabeling brand)