## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 18

- 00335

- CR

___________________ ________

On Appeal from the 213th District Court Tar rant C ounty, Texas Trial Court No. 1479170D

Before Kerr, Birdwell, and Bassel, JJ

. Memorandum Opinion by Justice Birdwell 

### J OSE 

### L UNA 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION T his appeal arises from a the ft p rosecution of a contract or who took money from homeowner s but neve r performed the prom ised services. A jury convicted Jose Luna of t heft of between $1,500 and $20,000, and t he trial court assessed his punishment at nine years ’ confinement

. Luna brings three compla ints on appeal: (1) the evidence is i nsufficient to support his conviction; (2) the trial court reversibl y erred by admittin g extraneous offense evidence at guilt

–

innocence ; and ( 3) because the indic tment failed to state a crim e, the trial court did not ha ve juri sdiction. We affi rm.

Indic tment Sufficiently Plea ded Of fense ; Thus, Trial Court Had Jurisdi ction In his third issue, 1 Luna argues that the indictment failed to state a specific offense ; thus, it failed to meet the constitutional definition o f a n in dictment and depriv ed the trial co urt of subject matter jurisdi ction. Accor ding to Luna, he c an raise this argument for the first time on appeal. We agree. See Smith v. State , 309 S. W.3d 10, 16

– 18 (Tex. C rim. App. 20 1 0 )

. T o determine if a charging instrume nt alleges an off ense , we must de ci de whether the allegations in it are clear and specif ic enough that a person can identify the offense alleged, i.e., the penal statute under which the State intends t o prosecute the defendant. Teal v. Sta te , 230 S.W.3d 172, 180 ( Tex. C rim. App. 20 07) ; Duron v.

1 We address th e issues out of order for ease of d iscussion , and we dispense with a separate backgro und section bec ause we d iscuss the facts in detail in our review of the eviden ce ’ s sufficiency.3 Sta t e , 956 S.W.2d 547, 550

– 51 (Tex. Crim. App. 1 997). If the allegations are suffici ently clear and specific, the indictment is sufficient to confer subject matt er jurisdiction. Teal , 230 S.W.3d at 1 80. “Stated another way: Can th e trial court (and appellate cour ts who give deference to the trial court ’ s assessment) and the defendant iden tify what penal code provision is alleged and is that penal code provision on e that vests jurisdiction in the trial court? ” Id. The version of Pen al Code Section 31.03 under w hich Luna was prosecuted provide d that (1) “ [ a] person commits an offense if he u nlawfully appropriates property with intent to deprive the owner of property, ” (2) “[a]ppropriation of property is unlawful if

. . . it is w i t hout the owner ’ s effective consent , ” a nd (3) such an offense is a state jail felony if “ the value of the property stolen is $1 ,500 or more but less than $20,000. ” T ex. Pen al Code Ann. § 31.0 3 (a), (b)(2); Act of May 29 , 2011, 82 nd Leg., R.S ., ch . 1234, § 21 , 2011 Tex. Sess. Law S e rv. 3301, 3309

– 10 ( amended 2017) ( current version at Tex. Penal C ode Ann. § 31.03( e)( 4

) (A) )

. Penal Code Section 31.09 provides that when a perso n commits theft in accordance wit h one schem e or

co ntinuing course of c onduct, “ whether from th e same or several sources, ” the multiple appropriations may be consid ered one off ense , and the amounts may be
aggreg ated to determine the lev el of offense. Tex. Penal Code Ann. § 31.09. The indictment in this case allege d that L u na , pursu ant to one scheme or co ntinuing course of conduct, unlawfully approp riate[d] the proper ty hereinaft er listed by acqui ring or otherwise exercising control over said property with the intent to d eprive the4 owners, named below[,] of the property, and th e aggregate value of all the property appro priated was m ore than $1 500, but less than $20,0 00 , and the da te, property appropriated and the owners of said property is as follows: 2

- 2 8

- 14, Money, Dao Le , 3

- 03

- 14, Money, Dao Le, 3

- 10

- 14, Money, S h aro n Johnso n [

. ] Accordi ng t o Luna, although the i ndictment references a scheme or continuing

cou rse of condu ct, it is defective because it d o es not specify how he engaged i n a

s cheme or continuing cou rse of conduc t , and it d oes not stat e how much money h e all egedl y stole from each o f the two complainants

. But the indictment (1) adequately

no tified L u na that th e State was seeking to aggregate th e amounts taken from two different specified complainants on three different specified dates under one sch em e or continuing cour se of conduct and (2) listed the minimum and maximum amounts alleged to have been s tolen for determining the potential range of punishment

. These allegations were sufficiently specific to allow Luna to discern the offense alleged; thu s, the indictment was not so defective that it deprive d the trial court of jurisdiction. Se e Kell a r v. S t ate , 108 S.W. 3d 311, 313 (Tex. Crim. App. 200 3) ; see also Berg v. State , 747 S.W.2d 800, 809 (Tex. Crim. App. 1984) (op. on reh ’ g) ( holding that Section 31.03 theft i ndictment , not relying on Section 31.09, need only all ege that the person charged unlawfull y appropr iated persona l p roperty with the i n tent to d eprive the owner of that propert y

)

. We overrule Luna ’ s third issue.5 Sufficiency of the Evidence Luna contends in his first issue that the evidence is insufficient t o show that he appropriated property from the compla inants because all the mon ey w as given to a man named “ Jay ” and there was no proof that Luna ever rec eived any money from Jay. He also con tends that t here wa s no evidence that he never intended to do the agreed

- up on work

. Standard of Rev iew Fe deral due process requires that the State prove beyond a reasonable doubt every element of the crime charged

. Jackson v

. Virginia , 443 U.S

. 307, 316, 99 S

. Ct

. 2781, 2787 (1979); see U.S

. Const

. amend

. XIV

. To det ermine whe ther the State met this burden , w e view all the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found the crime’s essential elements beyond a reasonable doubt

. Jackson , 443 U.S

. at 319, 99 S

. Ct

. at 2789 ; Queeman v

. State , 520 S. W.3d 616, 622 (Tex

. Crim

. App

. 2017)

. W he n the fact fin der must have made in ferences from the evidence, we determine whether the necessary infe rences w ere reasona ble based on the evidence’s cumulative force

. Murra y v . State , 457 S.W.3d 446, 448 (Tex

. Crim

. App. 2015 ) ; see Villa v

. State , 514 S.W. 3d 227, 232 (Tex

. Crim

. App

. 2017) (“The court conducting a sufficiency review must not engage in a ‘divide a nd conquer’ strategy but must consider the cumulative force of all the evidence.”)

. We must presume that t he factfinder resolved any conflicting in ferences6 in favor of the verdict , and we must defer to that resolution

. Murray , 457 S.W.3d at 448

– 49

. Dao Le Le testified that in February 2014, she contacted F1 Contract ors to repair a home she was selling in Eul es s . S he got the contractor ’ s name from h er realtor, and when she called she talked to , and later texted with , “ Jay. ” 2 They agreed to a price of $180 with a $140 down payment. “ Jay ” gave Le a bank account name and n umber so that she could drive to the bank and deposit the $140 directly; t he accou nt she deposited the money into was in Luna ’ s name. 3 T h e work was to be completed by March 8 or 9, 2 014. Le got an offer to buy th e house on the 8 th , but when she dro ve by t he hous e , no work had been done. S he tried to contact “ Jay ” but got no response . He r realtor was then able to contact “ Jay, ” who promised that the repair s wo uld be done before the home inspe ction on M arch 11

. The repairs were not compl eted by the inspection time, and the inspector note d in his report the broken items that were supposed t o have been repa ired. Le spoke with “ Ja y ” again on the 13 t h and asked him to make additiona l repairs

n oted by the inspect or. She paid him $ 3 00 , wh ich she also d eposited directly into Luna ’ s account. The repairs wer e to be completed by March 14 beca use the s ale ’ s

2 Although the evidence showed that Luna had an assoc ia te who went by the na me Jay, L una referred to himself w ith Le as Jay

.
3 Le ’ s r ealto r signed a contract with “ Jay, ” but Le never met hi m in person.7 closing was s cheduled for March 21. The work was not done, and “ Jay ” would not respond to messages from Le or h er realtor. Le had to pay someone else to com plete the work. Sharon Jo hnson Johnson needed work done on some of her income

- producing pr ope rties, so sh e responded to an F1 Contractor ’ s e mail that she belie ved was targeted to realtors. She talked to Lu na , who told her that he would con tact her via FaceTime at the duplex she owned , look at the areas that needed work, an d give her an estimate

. She showed Luna her property via a F aceTime call on March 5, 2014, and he gav e her an estimate fo r the work. But she did not give him a check until she met with his associate , Jay, on March 10, 2014. She w rote the che ck to Jose Luna, wh ich she questioned because it was not the company ’ s name, but Jay told her to make o ut the check th at way. The check , which s h e had des ignated “ Deposit only, ” cleared the same day. Although work was supposed to start a co uple of days after payment, no work was done. When J ohnson contacted Luna, he told her “ [t ] hat Jay had fa llen off the grid and he couldn ’ t fin d him. ” She called Luna again after some time had passed , and he told her “ not to worry, that . . . he would do the job, and everything would be fine. ” Johnson finall y had to report Luna to th e p olice because he never did any of the promised work

.8 Detec tive Whitlock No rth Richland H i lls police dete ctive Eric Whitlock testified that he w as assig ned to investigate Johnson ’ s report on March 25, 201 4

. He initially was ab le to

acces s a w ebs ite for F1 Contractors, but when he tried to access it a second ti me, it was no longer valid. He determined th at F1 Contractors , although purport ing to have an addr ess in Dallas, had no City of Dallas licenses and was not registered with the City o f D alla s . Whitlock testified a b o u t how Johnson had identified Luna in a photo lineup. While in vestigating, Whitlock discovered what had happened to Le. He also subpoena ed the bank records for the account in to which Joh nson ’ s check w as depos ite d

. He matched the driver ’ s license and b irthdate information from the account to Luna. He also saw that Le ’ s $300 check a nd Johnson ’ s $4,800 check had been deposited into th at account. Whitl ock also scrutinized the debit withdrawals from the account: on ly t wo
–– $238 and $28.68

–– were for a hom e i mprovement store , and those ch arges were made before the John son and Le deposit s. The majo rity of the rest were for “ personal entertainment , ” such a s liq uor and clot hing, and were made in

o ther st ates
. Whitlock c o uld not find Jay, whom he identified as Jamael Bradley, but he believed Luna was the “ primary offender ” b ecause the f ull amount s of Le ’ s $300 and Johnson ’ s $4,800 checks were d eposited into Luna ’ s account. Luna ’ s n ame was the onl y one associated with the a c cou nt. No thin g in his investigation show ed that Jay9 kept any of th ose funds for himself or that money wa s transferred from Luna ’ s account to any other accoun t
. Whitlock ’ s investigation also showed tha t someone had created additional websites

–– F1 Pro, F1 B uild , an d “ all other sorts of variations of the ori ginal name

. ” Whitlock discovered oth e r people from wh om Luna had taken money or property for work he never performed. Using a photograph of a v ehicle driven by Jay (taken by Johnso n ’ s boyfriend ), Whitlock dis covered that Luna had done so me thing similar t o Lori Ward , Lisa H ildinger, and Ro nald We ber

. 4 Weber testified that in January 2014 he co ntacte d Efficient Contractors to replac e c ar pet , repair walls , an d p aint to prepare his home for s ale “ by a ce rtain time ” ; he spoke with Lun a . 5 Weber set up a me eting with Luna, but a differe nt person showed up instead: a “ [y]oung guy, about 25, tall, thin African Am erica n . ” The man carried a tablet , through wh ich Weber communicated with Luna via video conference. T h at day, Weber and Luna settled on a tot al price, including a down payment of $1,500

. The next night , Weber wrote a ch eck for that am ount to “ J ose L una ” and p ut it under his doormat ; the check was gone th e next morning

. Two days later, the check

4 Although Luna challenges the admission of the fol lowing evidence in his second issue, we consider it in our sufficiency review bec ause we h ave d etermined that the trial cou rt di d not abuse it s discretion by adm itting it.

5 All three extraneous

- offens e witnesses testifie d that Luna called hi mself either Luna or Joe Moon, interchangeably.10 cleared W e ber ’ s ba nk . A copy of the cancel led check was admitte d into evidence ; it showed that the check had been deposited into Luna ’ s bank acco unt
. Luna never did any of the agreed

- upon work

. Initially, he did not respond to Weber ’ s phone calls and voice mails , but w hen W eber ca lle d him from an anonymous number, Luna answered and told Weber he could not do the work according to t he agreed

- upon schedule. Luna asked to resc hedule for several week s to a mo nth later, but Webe r told him that would not work wit h his schedul e an d asked for a refund. Luna in i tially refused to give Weber a refund , but he later texted We ber and prom ise d to write him a check fo r the full am ount
. Weber never received a check from L una. L

i sa Hildinger testified that she contacted Efficient Co ntract ors i n January 2014 to replace windows at a home s he intended to move into. She talke d to Lu na an d scheduled a dat e to meet w ith him; the “ project manager ” showed up inste ad, and she spoke to Luna via FaceTime. L u na qu oted her a price for th e work and aske d for the entire amount up front; he also refused to take a credi t c ard. H ildinger wro te a check for half the amount instead and gave it t o the project manager that day. She then got nervous and called her bank to try to stop paymen t, but the check had bee n cas hed about a half hour after the project mana ger left her. Although Luna email ed Hildi n ger that the windows would be installed in February, he stopped answering her calls. Hildinger was ab le to get Luna to talk to her again by telling him she wanted a n esti mate for additional work. Again, t he project manager me t with her, and she spoke to Luna via Face Time. Luna told her the11 windows would be d elayed for five days from his original e sti mated installment date. S h e never heard from L u na again, and he never perf ormed any work. Hil dinger reported Luna to th e police, and he was charged in Denton County. In October 2017, Hildinger agreed with prosecutors to drop the charge s in ex change for Luna ’ s repaying her. Lori Ward , a realtor and house flipper, te sti fied t hat i n early Septem ber 2013 she contacte d Luna after getting an “ e
- blast ” ; s he was considering adding an addition to her personal home. He met with her the next day and gave her an estimate. Luna was driving a sp orts car, and Ward a sked him why he did not ha ve a truck ; he said he had wrecked h is truck , and the sports car wa s a rental. As a down payment , s he offere d him either a truck or Ford Explorer, both of which her h usb and was selling , and he chose the Explorer. Her husband was eager to sell both, so th ey le t Luna

–– whom she verified by his driver ’ s license

–– take the Explo rer with him th at day. T h e trial cour t admitted a picture that Ward had ta ken o f Luna ’ s driver ’ s licens e the day she met wit h him

. Three days after their initial meeting , Luna brought a CAD d rawing to her house and asked for a $4,200 down payment so that he could buy s upplies; she wrote him a check , wh ich cleared her bank the same day

. Although the work was sup pos ed to be finished by October 30, Luna did not have the plans approv ed by the city until N o vembe r. Ove r the next several months, he gave Ward var ying ex cuses for the delay in beginning work. Al though s ome workers did “ set the form boards and12 put the rebar in ” in January, Luna did not do any other work. 6 He stopped communicating wit h War d in February 20 14. By contactin g the Pl ano police, s he was able to get her Explorer back but not the $4,200. Analysis
L u na argues on ap peal that the evidence is ins ufficient because all the evidence shows that Jay rec eived the checks and there is no direc t proof of wh o made the withdr awals from Luna ’ s account
. He also contends th ere is no proof that he lacked the intent to c omp lete the work. The Stat e ’ s evidence was circ umstantial. But c ircumstantial evidence is as probative as direct evidence in esta blish ing guilt

. Jen kins v. State , 493 S.W.3d 583, 599 (Tex. Crim. App. 2016)

. The jury could h ave reasonably inferred an inte nt to ap p ropriate property from Luna ’ s pattern o f estimat ing a price for work, obtaining as much money u p front as quickly as possi ble

–– whether person ally or throug h an emissary

–– avoiding contact and failin g to per for m work after receiving the money , and s pending the money o n items unrelated to materials related to th at work

. 7 Al l the evidence s hows that Le ’ s $300 and Johnson ’ s $4,80 0 w er e deposited in to an account associated with Luna by driver ’ s license and birthdate. We conclude that the evidence

6 Tw o different workers threatened to put liens o n her hou se f or the work done b ecause Luna had not pa id them.

7 “ In a theft case arising from a contract, the State must prove that the accused intended to deprive the owner of the property when i t was taken

. ” Jo hnson v. State , 560 S.W.3d 224, 227 (Tex. Cri m. App. 2 018)

.13 was s u fficient to sup port the conviction. See Johnson v. State , 560 S.W .3 d 224, 229

– 30 (Tex. Crim. App. 2018). We overrule Luna ’ s first i ssue. Extraneous Of fense Admissible In his second issue, Luna challenge s the trial court ’ s admission of his similar

extra neous offen ses against Weber, Hildinger, and W ard. According to Luna, these in ci dents were not “ recent t ransactions ” contemplat ed b y Penal Code S ection 31.03(c) , nor were they admissib le for any proper pu rp ose unde r Rule 404(b): “ the transactions were too remote in time and simply i ndicate that a business man is facing some hard tim es . ” 8 Tex. Penal Code Ann. § 31.03(c); Tex. R. Evid. 404(b). Evidence that a defendant has co mmitted “ cr imes , wrongs, or . . . ac ts ” other than the charged offense is not admissible at guilt

–

innocenc e to prove character conform ity

. See , e.g. , Tex. R

. Evid. 404 ( b ) (1) ; Montgomery v. State , 810 S.W.2d 372, 386 (Tex. 1 99 1 ) (op. on reh ’ g)

. But such evidence may be admi ssible for non
- character

conformity pu rposes , “ such as proving motive , opportunity, intent, prep aration, plan, knowledge, identity, absence o f mistake, or lack of accident

. ” Tex. R. Evid. 404(b).

8 Luna objected to the admissio n of the evidence during a hearing outside the jury ’ s presence. Specifica lly, he objected that the prior acts were too r emote in time from the tim e of trial , not the time of the alleged offense, to be admissible under Se cti on 31.03(c) an d that t he circumstances were too different, e specially as to Ward, to be admissible und er R u le 4 04( b). W e will address his complaints to the extent t hey comport with his tria l objections. See Clark v. State , 365 S.W.3d 333, 339 ( Tex. Crim

. App. 2012) ( “ In determining whether a complaint on appeal comports with a complaint made at trial, we look to the context of the obj ection and the shared understanding of the parties at the time

. ” ).14 An d Penal Code Section 31.03 (c) mo re specifically provides t hat to prove appropriation without consent in theft cases , “ evidence that the actor has previously participated in recent transactions othe r than, but similar to, ” t he charged offense “ is admissible for the purpose of showing knowledge or intent

. ” Tex. Pe nal Code Ann. § 31.03 (c)

. The requirement that a similar transaction be “ recent ” refers to the

extraneous act ’ s proximity i n time to the cha rged offense, not t o the trial. See Lop ez v. State , 316 S.W .3d 669, 678 (Tex. App.

–– Eas tland 2010, no pet. ); Benson v. State , 240 S .W.3d 478, 484 (T ex. App.

–– E astland 2007, pet. ref ’ d) ; Ballard v. State , 945 S.W. 2d 902, 905 (T ex. App.

–– Bea umont 1997, no pe t.) ; see also Hegar v. State , 11 S.W. 3d 290, 297 (Tex. App.

–– H o usto n [1 st Dist.] 1999, no pet.) (n otin g th at Section 31.03(c)

“ appears to be limited to recent transactions prior to the charged offense ” ), criticized in part on other g rounds by Jenning s v. S tate , 302 S.W.3 d 306 (Tex. Crim. App. 2010 )

. All of these other tr ansactions occur red within seve ra l mont hs of the charged offense and in close p roximity to each other. Th e manner in whi ch Luna obtai ned money from all five of these in dividuals during a re latively short six

- month period

–– without completing any app reci able work 9

–– shows a pattern of cond uct maki ng it more likely that he never i ntended to perform the work he promised to do . Thus, the trial c ourt did not abuse its discr etion by admitting the ev idence under Section 31.03 (c)

.

9 Even though s ubcontractors performed s ome wor k at W ar d ’ s house, Luna never p aid them for that work.15 Because we conclude that th e trial court properly admitted the e vi dence un der Section 31.03 (c) , we need not also address whether it was admissible under Rule 404(b)

. See Tex. R. App. P. 47.1; D augherty v. State , 260 S. W.3d 1 61, 162 (Tex. App.

–– H o uston [ 1 st Dist. ] 200 8, pet. ref ’ d)

. We overr ule Luna ’ s second issue. Co nclusion B ecaus e we have overr uled all of Luna ’ s issues, we affirm the trial court ’ s judgment. /s/ Wade Birdwell Wade Birdwell Justice Do Not Publish Tex. R. App. P. 47.2(b) Delive red : December 19, 2019