Jerry Lillard v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-04-395 CR ____________________ JERRY LILLARD, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 159th District Court Angelina County, Texas Trial Cause No. 24309 MEMORANDUM OPINION The Texas Court of Criminal Appeals remanded this case for reconsideration of the factual sufficiency of the evidence in light of the Court's recent opinion in Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006). See Lillard v. State, No. PD-825-06, 2006 WL 3518127 (Tex. Crim. App. Dec. 6, 2006) (not designated for publication). (1) As we set out in our prior opinion, the indictment charged Jerry Lillard with theft of a tractor, bush hog, two garden tillers, and U.S. currency from Mary Dorsett. The jury found Lillard guilty of felony theft, and the trial court sentenced him to ten years in prison and imposed a $5,000 fine. A person commits the offense of third-degree felony theft if the person (a) unlawfully appropriates property (b) with intent to deprive the owner of the property, and (c) the value of the property stolen is $20,000 or more, but less than $100,000. Tex. Pen. Code Ann. § 31.03(a), (e)(5) (Vernon Supp. 2006). The Penal Code states, "When amounts are obtained in violation of [the Penal Code's theft chapter] pursuant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in determining the grade of the offense." Tex. Pen. Code Ann. § 31.09 (Vernon 2003). Standard of Review Lillard raises four issues regarding the legal and factual sufficiency of the evidence. In assessing legal sufficiency, the relevant question is whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). In a legal sufficiency review, the reviewing court does not re-weigh the evidence or substitute its judgment for that of the jury. See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). The jury evaluates witness credibility, determines the weight accorded to witness testimony, and reconciles conflicts in the evidence. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). The Court of Criminal Appeals stated in Marshall that "[a] factual-sufficiency review is 'barely distinguishable' from a Jackson v. Virginia legal sufficiency review." Marshall, 210 S.W.3d at 625 (quoting Watson, 204 S.W.3d at 415). Nevertheless, the Court has said "the distinction is a real one[.]" Watson, 204 S.W.3d at 415. In a factual sufficiency challenge, the reviewing court considers all the evidence in a neutral light and sets aside the verdict only if the evidence is so weak that the jury's verdict seems clearly wrong and manifestly unjust or if, considering conflicting evidence, the jury's verdict is against the great weight and preponderance of the evidence. See Marshall, 210 S.W.3d at 625-26; Watson, 204 S.W.3d at 414-15. The appellate court is to give due deference to the findings of the fact-finder. See Marshall, 210 S.W.3d at 625 (citing Watson, 204 S.W.3d at 415, 417). "An appellate court judge cannot conclude that a conviction is 'clearly wrong' or 'manifestly unjust' simply because, on the quantum of evidence admitted, he would have voted to acquit had he been on the jury." Watson, 204 S.W.3d at 417. "Nor can an appellate court judge declare that a conflict in the evidence justifies a new trial simply because he disagrees with the jury's resolution of that conflict." Id. As Watson stated, "[A]n appellate court must first be able to say, with some objective basis in the record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the jury's verdict before it is justified in exercising its appellate fact jurisdiction to order a new trial." Id. Theft Lillard challenges the sufficiency of the evidence on two of the elements of theft: "intent to deprive" and the value of the stolen property. The Texas Penal Code defines "deprive" as follows: (A) to withhold property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner; (B) to restore property only upon payment of reward or other compensation; or (C) to dispose of property in a manner that makes recovery of the property by the owner unlikely. Tex. Pen. Code Ann. § 31.01(2) (Vernon Supp. 2006). The Penal Code defines "value" as the fair market value of the property or service at the time and place of the offense, or if the fair market value cannot be ascertained, the cost of replacing the property within a reasonable time after the theft. Tex. Pen. Code Ann. § 31.08(a) (Vernon 2003). The Court of Criminal Appeals has defined fair market value as "the dollar amount the property would sell for in cash, given a reasonable time for selling it." Simmons v. State, 109 S.W.3d 469, 473 (Tex. Crim. App. 2003) (citing Keeton v. State, 803 S.W.2d 304, 305 (Tex. Crim. App. 1991)). Background After Mary Dorsett and her sister met Lillard in 2001, he would "drop by" their home on a "regular basis" to see "how things were going." He said he knew their mother and brother, although the brother denied knowing him and Mary testified Lillard only met her mother once. Lillard began doing odd jobs for the sisters. Over the course of time, he suggested various deals, including the sale of some of the Dorsetts' real property, the renting of their pasture, and the sale of their horses. As described by an investigator for the Angelina County sheriff's office, Lillard's pattern was to continuously come to the Dorsetts and say he needed more money for various things; in response, they would write him checks and sometimes give him cash. The investigator also testified the Dorsetts felt they had been "conned" by Lillard. Mary Dorsett testified Jerry Lillard lied to her, "tricked" her, and stole her property. She described how he took money under false pretenses; how he stole her tillers; how he bilked her out of money in a land scheme he orchestrated; and how he agreed to do certain work for her, but did not complete the work or return her property. The alleged work included farm maintenance and repairs on a tractor and bush hog. Mary described how Lillard took the tractor and bush hog from her property and did not return it to her even after repeated requests to do so. Lillard also told her some of her property taxes had not been paid, and she wrote him checks with the understanding he would pay those taxes for her. Dorsett said she discovered she had already paid some of those taxes. Although Lillard had receipts showing he paid some of the taxes, the amounts he took from Dorsett for the taxes were greater than the sums he paid to the property taxing authorities. Dorsett also gave Lillard money to handle the filing of her income taxes, but he never did so; Dorsett had to tend to the taxes herself. Intent-to-Deprive Element With respect to evidence of the intent-to-deprive element, Lillard maintains he and the Dorsett sisters had an ongoing working relationship, and he argues the evidence is legally and factually insufficient to show he intended to permanently deprive them of the tractor, the money, and other property. See Tex. Pen. Code Ann. § 31.01(2) (Vernon Supp. 2006). The intent to deprive is determined from the accused's words and acts. King v. State, 174 S.W.3d 796, 810 (Tex. App.--Corpus Christi 2005, pet. ref'd) (citing Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981)). The fact-finder may infer intent from any facts that tend to prove its existence, including the method of committing the crime. Id. at 811. Here, the indictment alleged theft by deception. Deception means the following: (A) 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; . . . . (E) 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. Tex. Pen. Code Ann. § 31.01(1)(A), (E) (Vernon Supp. 2006). There is evidence in the record of a pattern of conduct whereby Lillard -- intentionally creating false impressions of fact, and promising, but not intending to perform -- took two tillers, a tractor and bush hog, money from a land deal, and money for various jobs he claimed he would perform. Mary testified Lillard had tricked her out of over $20,000, which did not include the tractors or bush hog. She said she wrote him checks for work he did not do, for bills he never paid, and for a land deal in which he pocketed the money belonging to her. As to the tractor, Mary testified Lillard agreed to repair a diesel tractor for her. The tractor had a bush hog with it. Mary said Lillard removed the tractor and bush hog from her property, but never returned the equipment to her. His explanation was that it belonged to Mary's mother, who had instructed him "not to take the tractors back to the property." Dorsett testified Lillard offered the excuse of a snakebite for his failure to return the equipment. On another occasion, he said he had colon cancer, although he later testified the diagnosis was a mistake. Lillard testified Dorsett never asked him to return the tractor. Mary testified they did not have their tractors for "at least" a year and a half. As to the tillers, K. E. Thompson, the owner of Bargains R Us, testified Lillard said he was selling the tillers for the Dorsetts. Thompson bought the tillers. Mary testified that when she found out the tillers were missing, she called Lillard. She said he told her he had taken the big tiller to his house because he was afraid people could walk off with it and it would be safer there. Mary also testified Thompson called her and wanted to know if she was missing anything. She told him she was missing two tillers; she paid $125 to get the tillers back. The record supports the jury finding of intent to deprive. Viewing the evidence in a light favorable to the verdict, a rational trier of fact could have found that element beyond a reasonable doubt. There is evidence Lillard withheld the tractor and bush hog, the tillers, and Mary's money from her for an extended period of time so that she was deprived of the enjoyment of the property. Further, viewing all the evidence in a neutral light, the great weight and preponderance of the evidence on the intent-to-deprive element does not contradict the jury's verdict. Value Element To prove the value of the property was at least $20,000, the State relied on Dorsett's testimony and on State's Exhibit 6, a summary of various checks Dorsett wrote to Lillard over the course of a two-year period. In describing monies Lillard had taken from her, including cash and the checks listed on the exhibit, Dorsett testified as follows: After I found out actually what was going on with this whole situation . . . I went back on my notes and everything and I actually figured it up with the cash that I could remember that I had paid him, plus all of the checks, and it came to over $20,000. That did not include the tractors, . . . the diesel or the gasoline, or the bush hog. . . . . [I]t was . . . over $20,000 that I have figured up that I had paid him--that he had tricked me out of since I knew him in 2001. Both the State and defense counsel elicited detailed testimony about the individual checks on the list. Dorsett acknowledged that Lillard sometimes performed work for her, and some of the checks on the list were payments for that work. Those specific checks, along with other checks (on the list) that Dorsett could not remember, are not evidence of theft. The largest check in Exhibit 6 was for $8,000, $7,000 of which Dorsett testified was for reimbursement of the buyer's earnest money on a land deal. Dorsett explained Lillard had wanted her to sell some of the real property she owned jointly with her siblings. She described how Lillard handled the land deal for her, took money from the prospective buyer for the down payment, and gave her $5,000. She later found out the buyer's down payment was $7,000, and Lillard kept the remaining $2,000 for himself. Dorsett testified she used the $5,000 cash he did give her to pay him for work he did for her. After the land deal collapsed, Dorsett wrote Lillard the $8,000 check for him to reimburse the buyer, but Lillard never gave the money to the buyer. Lillard disputed Dorsett's account. He testified he did not initiate the land deal, and the $8,000 check made out to him was not for the return of the earnest money. A notation Dorsett handwrote on the check stated "farm labor." Dorsett explained she wrote on the checks whatever Lillard told her to write; he denied that. She testified the $8,000 was not for farm labor. Ultimately, Dorsett retained an attorney to assist her in regaining the personal property she claims Lillard stole from her, and, through her attorney, she reimbursed the buyer his $7,000 down payment. In addition to the $8,000 check, Dorsett testified to other checks she wrote to Lillard and through which she claims he stole from her. These checks included real property taxes that she said she had already paid ($600); money for a four-wheeler on which Lillard had promised her a refund ($848); money for a land survey he never had done ($287); payment for work he did not do ($700); and money for handling her income taxes ($968). As supported by Dorsett's testimony and Exhibit 6, the total of those checks is $11,403. In addition to the checks, tractor, bush hog, and tillers, Dorsett testified that she used cash to pay Lillard, and she testified the total amount taken by Lillard under false pretenses was over $20,000. The only cash mentioned specifically, other than in Dorsett's summary testimony concerning cash amounts, was $5,000. At one point, Dorsett appeared to concede the $5,000 cash should not be included in calculating the total because it was for work actually performed. Her testimony is ambiguous regarding whether she gave Lillard the cash in payment for work performed. Lillard maintains he earned the money or was properly reimbursed for amounts Dorsett owed him. Lillard also testified he kept records of his dealings with the Dorsetts, but all his receipts were taken from his house after his arrest. Dorsett testified the value of the tractor was approximately $4,000, and the value of the attached bush hog was from $300 to $3,000. She indicated she could not pinpoint the bush hog's value more precisely. Lillard, who explained he had worked for a tractor company and had rebuilt many tractors, valued the tractor at $2,500 and the bush hog at $500. Lillard argues Dorsett's testimony regarding value is insufficient because it is not supported by expert testimony and the amount is merely an estimate. However, an owner may testify to the value of her own property. Sullivan v. State, 701 S.W.2d 905, 908 (Tex. Crim. App. 1986); Valdez v. State, 116 S.W.3d 94, 98 (Tex. App.--Houston [14th Dist.] 2002, pet. ref'd) ("[O]wner may testify in terms of purchase price or replacement cost, and is presumed to be testifying to an estimation of fair market value."). Should the defendant wish to rebut the owner's testimony, the defendant must offer controverting evidence of the property's value. Morales v. State, 2 S.W.3d 487, 489 (Tex. App.--Texarkana 1999, pet. ref'd). Lillard did not object to the value given by Dorsett for the tractor and bush hog; he did offer his own opinion of the tractor's value. The jury could have accepted Dorsett's $4,000 valuation of the tractor, $3,000 higher-range valuation on the bush hog, and the cash taken under false pretenses. See Ray v. State, 106 S.W.3d 299, 301-02 (Tex. App.--Houston [1st Dist.] 2003, no pet.) (range of value). In summary, Dorsett testified generally that Lillard had "tricked" her out of "over [$]20,000." Disputing much of her testimony, Lillard testified he loaned the Dorsett sisters over $9,000, paid their taxes for various years, bought the Dorsetts various equipment parts totaling almost $2,000, and did work for them. The evidence on the element of value is conflicting. In a legal sufficiency review, we look at all of the evidence in the light most favorable to the verdict to determine whether the evidence is sufficient to convict. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We consider the totality of the circumstances. Id. Dorsett testified about the checks Lillard had obtained from her under "false pretenses." She also testified of cash she had on hand to pay him for work he claimed to have done, but did not do, and expenses he represented he incurred. She testified to the value of the tractor, bush hog, and tillers and explained under what circumstances they were never returned. Lillard testified he did the work she asked him to do, and he said he loaned Dorsett money. He also indicated Dorsett gave him the tillers and offered various reasons for not returning the tractor and bush hog. The jury was free to resolve the conflicts in the evidence. Valdez, 116 S.W.3d at 99. A rational jury could conclude from the evidence of the checks, cash, tractor, bush hog, and tillers that Lillard intended to deprive Dorsett of the money and goods, and the total was $20,000 or more, but less than $100,000. The evidence is legally sufficient. The reviewing court considers all the evidence in a neutral light in a factual sufficiency review. See Marshall, 210 S.W.3d at 625. "Unless the available record clearly reveals a different result is appropriate, an appellate court must defer to the jury's determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered." Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000). The evidence regarding the amount of cash taken and the value of the tractor, bush hog, and tillers, though conflicting, does not warrant reversal and remand for a new trial in light of the Court of Criminal Appeals holding in Watson. The total comes to over $20,000; the presence of contrary evidence alone is not enough to justify a finding of factual insufficiency. See Watson, 204 S.W.3d at 417. We give due deference to the jury's determination concerning credibility and the weight to give contradictory testimonial evidence. See Johnson, 23 S.W.3d at 8. Applying the standard of review as set forth in Watson and Marshall, the evidence is factually sufficient. See Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 414-15. Issues one, two, three, and four are overruled. In issue five, Lillard also argues the trial court erred in failing to find he was totally indigent and in requiring him to pay a portion of the cost of the reporter's record. He states he "had no assets or money to pay for the Reporter's Record." This issue is moot as appellant has caused a reporter's record to be filed in this case, and we have considered it on appeal. See Fleming v. State, 987 S.W.2d 912, 922 (Tex. App.--Beaumont 1999), pet. dism'd, improvidently granted, 21 S.W.3d 275 (Tex. Crim. App. 2000); Reyna v. State, 797 S.W.2d 189, 194 (Tex. App.--Corpus Christi 1990, no pet.). Issue five is overruled. The judgment of conviction is affirmed. AFFIRMED. ____________________________ DAVID GAULTNEY Justice Submitted on January 30, 2007 Opinion Delivered May 9, 2007 Do Not Publish Before McKeithen, C.J., Gaultney and Kreger, JJ. 1. In our prior opinion, we found the evidence factually insufficient to support the conviction and reversed and remanded the case for a new trial. Lillard v. State, No. 09-04-395-CR, 2006 WL 950097 (Tex. App.--Beaumont Apr. 12, 2006) (not designated for publication), vacated and remanded, 2006 WL 3518127 (Tex. Crim. App. Dec. 6, 2006). We now reexamine the issue in light of Watson's overruling of the "reformulated factual-sufficiency standard of review introduced in Zuniga." Drichas v. State, 210 S.W.3d 644, 645 (Tex. Crim. App. 2006). See Watson, 204 S.W.3d at 416-417; see also Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004), overruled by Watson, 204 S.W.3d 415-17.