Lead Opinion
OPINION
delivered the opinion of the Court
The appellant in this case argues that he was convicted of theft solely because his apparent “ineptitude” prevented him from adequately fulfilling his contractual obligations. In a published split decision, the Sixth Court of Appeals affirmed the appellant’s conviction for theft in an amount between $1,500 and $20,000, a state-jail felony.
FACTS AND PROCEDURAL POSTURE
In the Trial Court
The indictment alleged that, “on or about the 30th day of November, 2010,” the appellant unlawfully appropriated $1,500 to $20,000 from “J. Reich” without his effective consent and with intent to deprive him of it.
Jeff Reich owned a construction company in Longview, and he also owned certain commercial properties in Longview and Kilgore. For several years, Reich had done business with the appellant and the appellant’s father, who ran several commercial sign businesses,
On November 22nd, the appellant applied to the City of Longview for a permit to install a simple “commercial” sign at the Lock Box location. The next day he also applied to the City of Kilgore for a permit to install an “illuminated” sign at the Kil-gore location. But Yocum heard nothing from the appellant as the holidays approached, so she tried to contact him. When the appellant finally responded, he offered various excuses, at one point explaining to Yocum that the LED signs were still in transit from China and would not arrive until after Christmas. When January came and Yocum continued to hear nothing from the appellant, she began to “hound” him, mostly via text messages, but the appellant remained evasive. In mid-January, Yocum requested that the appellant provide verification of purchase of the LEDs. The appellant faxed her an invoice on January 28, 2011, reflecting that four signs had been ordered from Affordable LED, Inc., a California company, on November 18, 2010, and that the $22,600 balance on the invoice had been paid in full, presumably at that time, with a credit card.
A few weeks later, as Yocum continued to badger him, the appellant arranged to return to the Lock Box location and to have Pete Gerbine, an independent commercial sign contractor, meet him there to help with the installation of the LED signs. When Gerbine scrutinized the permit that the appellant had obtained from the City of Longview, however, he realized that it did not cover the installation of LED signs.
Yocum testified that, at least as of November 4, 2010, when she first contracted with the appellant, she had not harbored any concern that he was trying to steal anything: “The day we signed that I gave
Over the appellant’s objection, the trial court permitted the State to introduce evidence of other recent contractual obligations that the appellant had undertaken but failed to complete. Four dissatisfied customers testified:
• James Arendell owned an Anytime Fitness franchise. In May of 2009, he contracted with the appellant to install a sign on those premises by August. Arendell paid the appellant approximately $9,000 up front. Although the appellant timely erected a sign, he failed to install the necessary electrical connection. After more than a year of attempting to get the appellant to complete the work and getting nothing but promises and excuses, Arendell eventually hired another contractor to complete the electrical work for $8000. At that point, Arendell realized that the sign that the appellant had erected was insufficiently illuminated. He sued the appellant in small claims court and obtained a judgment of $750, which the appellant has never paid.
• Doris Wallace owned the Village Shopping Center and a Subway restaurant in Hallsville. Wallace hired the appellant in February of 2010 to install a new sign for the shopping center and paid him a first installment of $3,194.10, leaving a balance of $3,188.04. She had contracted with the appellant and his father in the past, and they had consistently completed those jobs. But on this occasion the appellant’s work was shoddy and incomplete. When he installed the concrete base for the new sign, it collapsed into a concrete blob. Wallace had to hire Gerbine to fix the damage. Gerbine noticed that the appellant had poured the concrete in a state owned right-of-way, and so he had to move the base to a different location. After making numerous promises that he would produce a sign and offering various excuses why he had not yet done so, the appellant eventually quit answering Wallace’s calls. By June or July, he had yet to produce a sign. Nor did he reimburse Wallace the money she had initially paid him. Wallace hired Gerbine to supply and install a sign.
• Dr. Tucker Lee Woods was a chiropractor who opened an office on Wallace’s commercial property at the Village Shopping Center in Halls-ville. In February or March of 2010, Woods hired the appellant to construct a sign on the premises to advertise his business. Woods immediately paid the appellant half of the contract price of approximately $2,200, and he paid the balance in May or June. But after four months’ time the appellant still had not even begun the work. Nor could Woods ever get a “straight answer” from the appellant to explain the delay, despite numerous attempts. Woods successfully sued the appellant in small claims court and obtained a judgment in excess of $3,000, which the appellant paid only after a constable was sent to collect it. Woods hired another company that was able to install a sign within four to six weeks.
• Cathy Lee owned Java House Coffee in Liberty City. She ordered an unlit sign from the appellant, in September of 2008, and paid him $811, which represented half of the con*534 tract amount. Lee believed the sign would be in place within two weeks, but when that did not happen, she began to contact the appellant to find out why. With each call, the appellant would promise to come install the sign “next week.” After six months, when the appellant finally produced a sign, it was still unfinished and the wrong size, the text was in the wrong font, and the appellant failed to attach it to the pole securely. The appellant promised to fix it, but he never did. Upon receiving a demand letter from Lee, the appellant apparently promised to reimburse her, assuring her that the “check [was] in the mail,” but Lee never received it. Lee filed a civil suit against the appellant and won a default judgment.
At the conclusion of the bench trial, the appellant argued that the evidence failed to establish that, at the time he undertook the contract with Reich, he harbored any intent to deprive Reich of property. He argued that his attempts to complete the contract negated the requisite intent for theft, referring the trial judge to Ehrhardt v. State, an opinion of the Texarkana Court of Appeals.
“pattern [by which] what we see is [the appellant] doing a little bit of work, taking a lot of money, and then not completing the task. That’s what we see time and time again from [the appellant]. He gives a lot of excuses until he has gotten all the money he can out of you, and then he stops doing anything for you, right?”
The trial judge took the case under advisement. The next day, the trial judge filed a letter, which was faxed to the parties, in which he announced, “When we re-eon-vene, I will find the [appellant] guilty.” “What distinguishes this case” from Eh-rhardt, the trial judge explained, was “the evidence that [the appellant] had participated in similar transactions. That evidence, along with the evidence of the transaction alleged in the indictment, establishes the requisite mental state.” Later the trial court pronounced the appellant guilty on the record, assessing his punishment at one year’s confinement in a state jail and ordering him to pay restitution in the amount of $22,600.
In the Court of Appeals
On appeal, the appellant once again argued that the amount of work he performed on the contract, however defi-ciently, nevertheless served to negate any rational inference that he intended to deprive Reich of property as of the time of their contract. In a 2-1 decision, the court of appeals held that the evidence was sufficient to support appellant’s conviction.
In dissent, Justice Carter cited Baker v. State,
THE LAW
The Malik standard of a hypothetically correct jury charge for measuring sufficiency of the evidence applies in bench trials.
A person commits theft “if he unlawfully appropriates property with intent to deprive the owner” of it.
• creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true;29 and
*536 • promising performance that is likely to affect the judgment of another in the transaction and that the actor does not intend to perform or knows will not be performed, except that failure to perform the promise in issue without other evidence of intent or knowledge is not sufficient proof that the actor did not intend to perform or knew the promise would not be performed.30
The question before us is whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense of theft as so defined to a level of confidence beyond a reasonable doubt.
Theft cases involving unfulfilled contractual obligations present special problems with sufficiency of the evidence. As we have observed before:
A claim of theft made in connection with a contract ... requires proof of more than an intent to deprive the owner of property and subsequent appropriation of the property. In that circumstance, the State must prove that the appropriation was a result of a false pretext, or fraud. Moreover, the evidence must show that the accused intended to deprive the owner of the property at the time the property was taken. In reviewing the sufficiency of the evidence, though, we should look at events occurring before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act.32
A contractor accused of theft may not be convicted of that offense on the theory that he acquired a down payment from his customer by deception if there is no reason to doubt from the evidence that he had every expectation at the time that the money changed hands of fulfilling his contractual obligation; at the time of the down payment, the customer paid voluntarily, and the accused neither intended nor knew he would not perform.
The courts of appeals have picked up on this theme and elaborated upon it. One court of appeals has explained that, “[i]f no more than intent [to deprive] and appropriation is shown in a contract claim, nothing illegal is apparent, because under the terms of the contracts individuals typically have the right to ‘deprive the owner of property,’ albeit in return for consideration.”
But these principles, the courts of appeals have recognized, are not absolute. For one thing, a contractor may yet be found guilty of theft if, at some point after the formation of the contract, he formulates the requisite intent to deprive and appropriates additional property by deception; that is, he induces his customer to make further payment on the contract while no longer intending to perform, or at least knowing that he will not.
ANALYSIS
Could a rational trier of fact conclude that, at any time at which the appellant induced Reich to make payment on their agreement, he had no intention to perform — or at least knew that he would not perform — his contractual obligation? The court of appeals answered this question affirmatively, effectively holding the evidence sufficient to establish that, at least as of the point in late November of 2010 when the appellant induced Reich to make the second installment payment of $10,000, based upon the apparently false
Although far from conclusive, the evidence supports a rational inference that, at least by the time the appellant induced the second payment on the contract, he had formulated the requisite intent to deprive Reich of his money without consideration. Bearing in mind that, by statute, the appellant’s failure to perform on the contract will not suffice to establish that he did not intend to, or at least knew he would not, fulfill his contract obligations,
We agree with the State that the evidence of the appellant’s other contract disputes since taking over the business from his father reveal a pattern from which a rational fact-finder could conclude that the appellant was aware that he would be unable to fulfill his contractual obligation to Reich by the time that he induced the late-November payment. Together, the testimony of Arendell, Wallace, Woods, and Lee established a recent trend whereby the appellant would contract to install a sign, take a substantial initial payment on the contract, inexplicably and unreasonably delay the work while (at least sometimes) inducing the customer (such as Woods and Reich) to make further installment payments, cut off contact with the customer when no further payments were forthcoming, and then ultimately fulfill his contractual obligations, if at all, only under duress. The inference that the appellant at least knew he would not perform in this case is certainly less compelling than in Merryman, where the defendant’s conduct more clearly evinced a purpose to take regular payments without any intention ever to fully perform.
It is true that some of the appellant’s conduct would seem circumstantially to dispel the inference that the appellant knew that he would not perform. He sought permits for the installations as early as November 22nd, and showed up at the Lock Box location on two occasions with an apparent purpose to install LED signs there. But the trial court could rationally have concluded from the facts that the Lock Box permit was obviously deficient, that the appellant’s conduct on those occasions was evasive, and that the signs were never ultimately installed, that the appellant had a modus operandi, as evidenced by his other recent business dealings, to put on an appearance of intending to satisfy his contractual obligations while knowing he would not. The evidence in this case is admittedly far from overwhelming, and many fact-finders might just as reasonably have acquitted the appellant. Even so, we cannot say that the trial court’s reliance on the appellant’s other recent failures to perform on his contractual obligations to infer both deception and an intent to deprive on the appellant’s part in this particular case was “a determination so outrageous that no rational trier of fact could agree.”
Justice Carter believed the evidence to be insufficient because there was a failure of proof that the $10,000 the appellant induced Reich to pay in late November, while “probably paid prematurely, ... was diverted from the project.”
CONCLUSION
We remain ever mindful that, in breach of contract cases, an accused may not be convicted for theft based upon nothing more substantial than evidence that, for whatever reason (including his “monumental ineptitude in business”),
. Taylor v. State, 440 S.W.3d 854 (Tex.App.-Texarkana 2013)
. Id. at 859-61.
. Id. at 860-62.
. Tex. R. App. P. 66.3(e).
. The State thus bound itself to prove that the . appellant unlawfully appropriated the money , from Reich at any time before the presentment of the indictment to the grand jury but not so remotely that prosecution would be barred by the statute of limitations. Thomas v. State, 444 S.W.3d 4, 9-10 (TexCrim.App.2014).
. The appellant testified that he ran two such companies, Taylor Made Signs and Taylor Custom Signs. His agreement with Reich is memorialized on a Taylor Custom Signs invoice.
. Yocum negotiated the agreement with the appellant; Reich signed the checks. During his testimony, Reich summed up the breakdown of exactly what he had contracted for:
A. We had two sets of LED signs that we wanted. One of them on the Lock Box storage facility that I own, and one of them on a commercial property that I own down in Kilgore. So there’s two sets. You have to have — there's two different signs per— per LED, one on each side. So there's four signs total, so two per location.
. The appellant testified that he told Yocum only that he would "try” to install the signs by December. Nothing on the November 4th Taylor Custom Signs invoice memorializes a specific agreement as to when the work would be completed, but both Yocum and Reich testified that they were led to expect that the work would be finished in December.
. The appellant introduced two other invoices for LED signs. The first was dated November 11, 2010, and it reflects that “Henry Taylor Sign” ordered two LED signs from a Houston company, Elite LED Supply, for the amount of $11,600. This invoice is stamped "PAID,” but it does not make reference to a particular job. The second invoice is dated much later, February 2, 2011. It purports to bill "Taylor Custom Signs” the amount of $3,360 each for two LED signs from Affordable LED, the California company. This invoice is stamped “PAID 03/07/2011," and also shows that two more LED signs were ordered but on bac-korder. Nothing on the face of this invoice refers to the Reich jobs either. The appellant explained that he ordered two of the LEDs for the Lock Box job from Affordable and the other two for the Kilgore job from Elite. He explained that he had dealt with Elite before and knew that they could deliver within eight or nine weeks. Although Affordable promised it could deliver within two weeks, the appellant had never dealt with Affordable before. So he decided to order half of the LEDs from Elite and half from Affordable. He admitted that the LEDs from Elite were different from
. Yocum testified, somewhat cryptically, that "I actually still have one of the boxes[,]” and that it "actually has a piece of the equipment in it.”
. When asked on cross-examination whether he had realized he lacked the proper permit, the appellant replied, "When I went and pulled it I thought there was a permit. I thought that’s all you had to have.” But later he explained, "I don't like getting my permits until when I get everything — the sign in my hand.”
. Gerbine testified that "the signs never showed up in my shop.” It is not entirely clear from Gerbine’s testimony whether he ever actually saw the LED signs themselves, although he did testify that, other than the wrong permit, another problem with installing the signs on that day was that "there was some additional bracing that needed to be done to the signs.” He did not explain how he was aware of this. For his part, the appellant testified that he did not take the signs to Gerbine’s shop because he believed Gerbine was attempting to "take the job” from him. The appellant insisted that he still had all four LEDs in his possession and he introduced photographs of LED signs which he claimed were those that he had ordered for Reich.
. By this time, the appellant had actually done some preliminary work at the Kilgore location, but the electrical work had yet to be completed and no LED signs had been installed there.
. See 334 S.W.3d 849, 855 (Tex. App.-Texarkana 2011, pet. ref'd) ("The amount of work performed can negate any intent to deprive at the time of the formation of the contract.”).
. The restitution amount assessed reflects the price for the manufacture of the four LED signs, as stated in the November 18th invoice from Affordable LED, Inc. to Taylor Custom Signs.
. Taylor, 440 S.W.3d at 859-60.
. Id.
. Id.
. 986 S.W.2d 271 (Tex. App.-Texarkana 1998, pet. ref'd).
. Id. at 275.
. Taylor, 440 S.W.3d at 862 (Carter, J., dissenting).
. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997).
. Geick v. State, 349 S.W.3d 542, 546 (Tex.Crim.App.2011).
. Tex. Penal Code § 31.03(a).
. Id. § 31.01(4)(b).
. Id. § 31.01(2)(A).
. Id. § 31.03(b)(1).
. Id. § 31.01(3)(A).
. Id. § 31.01(1)(A).
. Id. § 31.01(1)(E).
. Geick, 349 S.W.3d at 545.
. Wirth v. State, 361 S.W.3d 694, 697 (Tex.Crim.App.2012) (citations, footnotes, and quotation marks omitted).
. Phillips v. State, 640 S.W.2d 293, 294 (Tex.Crim.App.1982) (relying on Tex. Penal Code § 31.01(2)(E) to hold that, "since the down payment was voluntarily given to the appellant pursuant to a contractual agreement and there is insufficient evidence in the record to show the money was obtained by deception, the conviction cannot stand"); Peterson v. State, 645 S.W.2d 807, 811-12 (Tex.Crim.App.1983) (same); Wilson v. State, 663 S.W.2d 834, 836-37 (Tex.Crim.App.1984) (same).
.Baker, 986 S.W.2d at 274. See also Jacobs v. State, 230 S.W.3d 225, 230 (Tex.App.Houston [14th Dist.] 2006, no pet.) ("[T]he State must show a rational factfinder could have found appellant had no intention of fulfilling his obligation under the agreement, and his promise to perform was merely a ruse to accomplish theft by deception.”) (citation and internal quotation marks omitted).
. Baker, 986 S.W.2d at 275; see also Ehrhardt, 334 S.W.3d at 855 ("The amount of work performed can negate any intent to deprive at the time of formation of the contract.”); Phares v. State, 301 S.W.3d 348, 352 (Tex. App.-Beaumont 2009, pet. ref’d) (when the accused contractor in a theft case performs many of the services contracted for, the evidence fails to establish that appropriation of payment from his customer at the outset of the contract was unlawful in that it was without effective consent because of the accused’s deception); Cox v. State, 658 S.W.2d 668, 670-71 (Tex. App.-Dallas 1983, pet. ref’d) (same).
. Ehrhardt, 334 S.W.3d at 856 ("The requisite criminal intent can be formed after the formation of a contract. We emphasize, however, the deprivation of property cannot occur prior to the formation of the requisite intent.’’); Higginbotham v. State, 356 S.W.3d 584, 588 (Tex. App.-Texarkana 2011, pet. ref’d) (same).
. See Tex. Penal Code § 31.01(1)(E) (requiring evidence of more than the "failure to perform the promise in issue” to establish that the actor does not intend to perform or knows he will not).
. See Merryman v. State, 391 S.W.3d 261, 272 (Tex. App.-San Antonio 2012, pet. ref’d) (the evidence is legally sufficient to prove theft by deception when ”[t]he evidence shows a series of transactions between Merry-man and customers with the same pattern— promising to complete the construction projects in a short time-frame (one to two months), demanding advance payments on a tight weekly schedule regardless of job progress, beginning a minimal amount of work and then stopping and walking off the job, leaving it unfinished after a ‘payment dispute' arose, and giving no refund of payments made”).
. The court of appeals observed:
While we agree with [the appellant] that the entire chain of events does not evidence the intent, at the time the contract was formed,.to unlawfully deprive Reich of [his] funds, a false representation made by [the appellant] to induce Reich to .make the $10,000.00 payment [on or about November 18, 2010] is legally sufficient evidence supporting a finding of unlawful appropriation, the basis for the claim of theft.
Based on this evidence, the fact-finder could have reasonably believed that [the appellant] induced Reich to make a $10,000.00 payment within two weeks of the November 5 down payment by falsely representing that the signs were ready for shipment when they were not.
Taylor, 440 S.W.3d at 861.
. Tex. Penal Code § 31.01 (1 )(E).
. Id. at *4.
. Cf. Tex. Penal Code § 6.03(b) ("A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.”).
. See note 38, ante.
. Wirth, 361 S.W.3d at 698.
. Taylor, 440 S.W.3d at 862 (Carter, J., dissenting).
. Id. See note 9, ante.
. Id.
. See note 9, ante.
.It is not clear from the record that either Yocum or Gerbine ever actually saw the signs, and the appellant himself, besides never satisfactorily explaining the various anomalies with the invoices from the sign manufacturers, never fully justified having ordered a sign for the Kilgore job that was different from the one that he and Yocum had agreed upon. See note 9, ante.
. Taylor, 440 S.W.3d at 859-60.
. Tex. Penal Code § 31.01(1)(E).
Dissenting Opinion
DISSENTING OPINION
filed a dissenting opinion.
All sides seem to agree that appellant is monumentally inept at business. The evidence establishes that he is also monumentally inept at installing signs. The trouble seems to have started when his father “stepped out” of the business, leaving appellant to both run the business side and the installation side unsupervised. Appellant has proved himself to be completely unable to perform either task. But that is not a crime. This is a contract dispute, and it should be left to the civil courts to resolve it. I respectfully dissent.