Opinion filed November 30, 2016



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 1 4

- 00 327

- CR

__________ PAUL MUNOZ III , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 142nd District Court
Midland County, Texas
Trial Court Cause No. CR 39214

M E M O R A N D U M O P I N I O N
The jury convicted Paul Munoz III of two counts of theft over $1,500 or more but less than $20,000

. See T EX

. P ENAL C ODE A NN

. § 31.03 (a) (West Supp. 2016);
former P ENAL C ODE § 31.03(e)(4)(A) (2011 ). Appellant pleaded true to one enhancement paragraph, and t he trial court assessed his punishment at confinement
for ten years on each count

. App ellant presents four issue s on appeal

. We affirm

.2

In Appellant’s first issue , he argues that the evidence is insufficient to sustain
his conviction. In his second issue , Appellant contends that his due process rights
were violated . In Appellant’s third issue , he asserts that the trial court abused its
d iscretion when it admitted evidence of extraneous offenses. In Appellant’s fourth
issue , he argues that the State engaged in improper closing arguments when it

ass erted matters not in evidence. We review the sufficiency of the evidence, whether denominat ed as a legal or as a factual sufficiency claim, under the standard of review set forth in Jackson v. Virginia , 443 U.S. 307 (1979). Brooks v. State
, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State
, 337 S.W.3d 286, 288

– 89 (Tex. App.

— Eastland 2010, pet.
ref ’ d). Under the Jackson standard, we examine all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and any reasonable inferences from it, any rational trier of fact could have found the e ssential elements of the offense beyond a reasonable doubt. Jackson
, 443 U.S. at 319;
Isassi v. State , 330 S.W.3d 63 3, 638 (Tex. Crim. App. 2010). In April 2010, Daniel Ruiz took his son’s 2002 Chevrolet Camaro to Appellant’s auto repair shop to have the engine replaced . Appellant and Ruiz were friends

. Although Appellant quoted a fee of $2
, 000 to Ruiz
, t he written estimate provided for a cost of $1,300 for the engine and $750 for labor . Ruiz paid Appellant $1,300 up front to order the engine. In May, Ruiz paid $300 for “s hipping costs” for the engine. I n July, Appellant requested $500 more , and Ruiz paid him. In total, Ruiz paid $2,100 in c ash. Ruiz went to Appellant’s shop “ [ a ] t least twice a month” to check on the status of the repair. Appellant gave him excuses about why Appellant had not ye t repaired
the Camaro

. Appellant claimed that he had problems with the engine that he ordered
and that he had to ship it back and reorder it . After the Camaro was in the shop for about three months, Ruiz be gan to record the conversations that he had with3

Appellant. In the recordings, Appellant complain ed that h e ha d had a bad year, that
he had had to t a k e the Camaro to another mechanic to be repaired , that he was waiting on customers who owe d him money to r eceive their income tax return s so that they could pay him , and that he was waiti ng on a $6,000 check to clear. In November of 2010, the Camaro had been in Appellant’s shop for at least
si x months, and Ruiz agreed to sell t he car to Appellant for $4,000. However, Appellant never paid any money to ward the purchase of the car. In March of 2011, after a discussion with the police, Ruiz sent a demand letter to Appellant and asked for the agreed

- upon sale price of $4,000. Ruiz did not rec eive any money from Appellant.
Ruiz went to Appellant’s body shop on the first day of trial and took a photograph of the Camaro. Ruiz said that the Camaro was “all taken apart; no engine, no transmission, parts missing, the hood’s gone. I mean it’s in bad shape.”
Under Se ction 31.03 of the Texas Penal Code, a person commits theft if he

“ unlawfully appropriates property with in tent to deprive the owner of property. ”
P ENAL § 31.03(a). Appropria tion of property is unlawful if it is withou t the owner ’ s effective consent , and c onsent is not effective if it is “induced by deception.” Id

. §§ 31.01(3)(A), 31.03(a). To deprive an owner of property means “to withhold property from the owner permanently or for so extended a period of time that a major portion of the value or enjoym ent of the property is lost to the owner.” Id. § 31.01(2)(A). The Texas Penal Code defines “deception” as:

(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;
(B) failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true;4

. . . . (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

.
Id. § 31.01(1). To support a conviction for theft by deception
, there must be evidence that shows that, at the time of the customer’s voluntary payment, the accused intended, or knew, that he would not perform. Taylor v. State , 450 S.W.3d 528, 536 (Tex. Crim. App. 2014). Appellant argues that the evidence is insufficient because he had a reasonable mistaken belief about the “costs for repairs and availability of parts.” Appellant
contends that
, because of this mistaken belief, he did not possess the sufficient mens

rea required for the commission of the offense. “It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.” P ENAL § 8.02(a) (West 2011 ). It is not an affirmativ e defense upon which the defendant bears the burden of proof. See id. § 2.04; see also Saxton v. State , 804 S.W.2d 910, 913

– 14 (Tex. Crim. App. 1991) (distinguishing defensive claims upon which the State bears the burden of persuasion and affirmative defenses upon which the defendant bears the burden of proof)

. Appellant also stresses that there was not a timetable for the work to be completed. The S tate argues that no evidence was presented at trial that
, at the time Appellant entered into the contract, he was mistaken about “costs for repai rs and availability of parts.” Therefore, t he State
asserts that the evidence was sufficient to support the co nviction.5

We agree with the State

. The evidence established that Ruiz paid Appellant $1
, 300 in advance to order the engine and
, at the request of Appellant
, an additio nal $800 over the next few months. Appellant gave Ruiz many excuses as to why he had not completed the repair and
, as recorded in the audio recordings between Ruiz and Appellant, contin ued to give Ruiz excuses as to why he had not paid Ruiz the agreed

- upon amount to purchase the Camaro. Additionally, by the time of trial, it
ha d be en four and one

- half years since Ruiz took the car to Appellant and paid him $2
, 100 for work that was never completed. Appellant never return ed the car to Ruiz,

nor did Appellant pa y any money to Ruiz for the sale of the car. At trial, the State presente d evidence of Appellant’ s prior theft convictions.
The evidence included a conviction for theft by deception, over $1
, 500, for failure to repair a Chevrolet Tahoe and a conviction for theft by deception, over $1
, 500 , for
failure to install four tire rims and four tires. Section 31.03 provides, “ [E] vidence that the actor has previously participated in recent transactions other than, but similar to, that which the prosecution is based is admissible for the purpose of s howing knowledge or intent.” P ENAL § 31.03(c)(1). The evidence of Appellant’s prior theft convictions and failure to perform contractual obligations revealed a pattern that the jury could have consider ed to conclude that
, at the time Ruiz brought the Cam aro in

to have the engine replaced , Appellant did not intend to fulfill his contractual obligation to repair Ruiz’s car

. See Taylor , 450 S.W.3d at 538

. Further, there was
no evidence presented at trial to show that Appellant was mistaken about the costs of the repairs and the availability of parts. Appellant did not raise the defense of
mistake of fact nor request a mistake

- of

- fact instruction in the jury charge. Accordingly, viewing all the evidence in the light most favora ble to the verdict, we
conclude that a rational trier of fact could have found all of the elements of the
offense of theft by deception beyond a reasonable doubt

. Thus , the evidence is sufficient to support Appellant’s conviction. Appellant’s first issue is overruled.6

In I ssue T wo , Appellant argues that
, because the evidence wa s insufficient, Appellant was denied due process of law. The Due Process Clause of the Fourteenth Amendment guarantees that no person may be convicted of a criminal offense and
de nied his liberty unless his criminal responsibility for the offense is proved beyond
a reasonable doubt. In re Winship
, 397 U.S. 358, 364 (1970); Alvarado v. State , 912 S.W.2d 199, 206

– 07 (Tex. Crim. App. 1995); see U.S. C ONST . amend. XIV. We
held in I ssue O ne that the evidence was sufficient to support Appellant’s conviction

. Therefore, Appellant was not denied due process of law. Issue T wo is overruled. Appellant argues in I ssue T hree that the trial court erred when it allowed
evidence of extraneous bad acts to be admitted into evidence to show intent

. In his brief, Appellant generally complains about the admission of evidence that involved

“ ‘ insufficient ’ checks ” allegedly written by Appellant. However, Appellant does not direct us to the place in the record where the trial court admitted the complained

of evidence. We have reviewed the record
, and based on our review of the record,
State’s E xhibit Nos. S even and F ourteen are the only exhibits that involve
insufficient funds or checks. The record shows that Appellant objected to the
admission of State’s E xhibit Nos. S even and F ourteen and that the trial court sustained Appellant’s objections and did not admit these exhibits into evidence during the guilt/innocence phase of trial. State’s E xhibit Nos. N ine through T hirteen
contained judgment s for theft convictions and were admitted as evidence. However,
the record does not show that any of the exhibits admitted during the guilt/innocence phase of trial involved “ ‘ insufficient ’ checks.” To preserve error for appellate review, a party must make a timely
, specific objection and obtain an adverse ruling
from the trial court. See T EX

. R. A PP

. P . 33.1(a) ; Valle v. State
, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)

. B ecause A ppellant did not obtain an adverse ruling
, no error is prese rved

. See Dooley v. State
, 65 S.W.3d 840, 842 (Tex. App.

— Dallas 2002, pet. ref ’ d)

. Therefore, because Appellant did not receive an adverse ruling on7

th e evidence that involved insufficient funds or checks, he has failed to preserve this issue for our review. Appell ant’s third issue is overruled.
In I ssue F our, Appellant argues that “the prosecutor improperly stated during closing remarks during the punishment phase of the trial that there were

‘ potentially ’ others who had gone unpaid” by Appellant. We agree with the State that Appellant failed to preserve the issue for our review. As a prerequisite to presenting a complaint for appellate re view, th e record must show that “ the complaint was made to the trial court by a timely request, objection, or motion .”
T EX

. R. A PP

. P . 33.1(a)(1). Defense counsel did not object to the prosecutor’s argument that there were “potentially” others. Therefore, Appell ant has waived this complaint. We overrule Appellant’s fourth issue. We affirm the judgment of the trial court.

JIM R. WRIGHT
CHIEF JUSTICE

November 30 , 2016 Do not publish. See T EX

. R. A PP

. P . 47.2(b). Panel consists of: Wright, C.J., W ill son , J ., and Bailey, J.