COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00532-CR

ELMER BROWN APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM COUNTY CRIMINAL COURT NO. 4 OF DENTON COUNTY

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MEMORANDUM OPINION1

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Appellant Elmer Brown appeals his conviction for deceptive business 

practice. We affirm.

Background Facts

In early 2007, Bonnie Serben sought bids from contractors to repair and 

remodel her mother’s house. In May 2007, she received a bid from Appellant’s 

 1

See Tex. R. App. P. 47.4.
2

company, Brown and Company. Appellant proposed to, among other things, 

replace the roof and siding, replace the exterior doors and windows, replace the 

septic tank system, install skylights, perform landscaping, rewire the electrical 

system, install a HVAC system, replace sheetrock and insulate the walls, install 

cabinets and bathroom fixtures, and refinish the hardwood floors.

Serben and Appellant negotiated a contract for Appellant’s services. 

Serben agreed to pay Appellant $118,176. The contract stipulated that Serben 

would pay $35,963 of the contract price as a deposit “to be used by [Appellant] 

for the purchase of all exterior materials, equipment, and tools required and 

permits necessary to begin the Work.” Serben agreed to pay for the rest of the 

services as they were completed upon submission of a payment request by 

Appellant. The contract stated,

The submission of a payment request by Contractor will constitute a 

representation by Contractor to Owner that the Work has progressed 

to the point indicated and that, to the best of Contractor’s 

knowledge, information[,] and belief, the quality of the Work is in 

accordance with this Agreement and generally accepted industry 

standards applicable in Texas.

The parties agreed that Serben would retain 15% of each invoice amount for 

thirty days after completion of the entire project. The contract also provided for 

an early completion bonus if Appellant completed the work in one hundred 

working days and a late completion penalty if Appellant did not finish the project 

within 146 working days. The parties signed the contract in June 2007.
3

Serben received an invoice for the deposit ($30,568.55 after the 15% 

retainage), which she paid by check on June 16, 2007. Serben received a 

second invoice on June 26, 2007, for $6,800 for the installation of the roof. She 

paid that invoice by check on July 2, 2007. Serben received a third invoice also 

dated June 26, 2007 for $24,990 for “interior demolition,” “clear[ing] 

debris/shrubs,” “remov[ing] trees/prun[ing] trees,” and electrical wiring and 

materials, air conditioning unit and duct materials and accessories, and copper 

lines for plumbing. Serben paid that invoice by check on July 7, 2007.

In September 2007, Serben requested and received a cost report from 

Appellant showing how the funds had been applied. In the cost report, Appellant 

stated that he had performed and bought material for $46,671 worth of work, 

including installing the skylights, cabinets, and the HVAC system and performing 

electrical and plumbing work, none of which had actually been performed. The 

cost report also included $5,099 for “Administrative.”

Also in September 2007, Serben requested a contract change order 

adding $6,339 of work to the contract. On September 14, 2007, Serben received 

a fourth invoice for $12,196.95 for siding, tree trimming, insulation and drywall 

installation, and a number of the items from the change order. Serben paid the 

invoice by check on September 15, 2007.

In early October 2007, Serben attempted to reach Appellant because 

“nothing was getting done” on the house. She called him “[n]umerous times,” but 

he did not answer the phone and eventually the number was disconnected. On 
4

October 8, 2007, Appellant emailed Serben and said that he had been away at 

his grandmother’s funeral in Arkansas and that he had “a very ag[gressive] 

schedule to make up for lost time.” He told Serben that he was expecting to 

complete the project some time in November. Serben testified that Appellant did 

no more work after he sent that email. None of the things that Appellant said in 

the email he would complete, such as installing the HVAC system, completing 

the plumbing, installing the sheetrock, and finishing the carpentry work, were 

completed.

On November 20, 2007, Serben’s husband, John, emailed Appellant a 

letter regarding what work still needed to be completed on the house. The letter 

said,

It continues to be very difficult to contact you. You don’t answer your 

cell phone and never seem to empty your cell phone mailbox, and, 

as a result, we cannot leave messages for you! . . . In addition, you 

have not shown up for several meetings with us that you requested.

John told Appellant,

It is obvious that there has been no activity by you [on the house] in 

nearly two months. . . . Your delays have caused us considerable 

anxiety, problems, time, money, disruption to our personal plans, 

inconvenience, etc[.], over your inability, desire, and wherewithal [to] 

do what you committed to do. And, may I remind you, that we 

have paid you in advance, far more than the work completed 

thus far can justify.

In the email, John also said, “You have not delivered to us copies of paid 

invoices and the written proof of releases from your subcontractors as we have 

requested several times and is specified in our contract with you.” He told 
5

Appellant that under the contract, he had until January 24, 2008 to complete the 

project.

On November 24, 2007, Appellant responded to the letter. He told the 

Serbens that he had been waiting for the windows to be installed and that he had 

“everyone scheduled to go in at the end of th[at] week.” He disputed the 

Serbens’ calculation of the last day of the contract period but said, “Once we 

begin, the final product should not take long to complete.” Serben received no 

further communications from Appellant.

On December 3, 2007, Serben emailed Appellant again and stated that still 

no more work had been done on the house. She said, “At this point, we would 

be happy to cancel the contract and either get the money we advanced for 

materials returned to us, or alternately, the materials that you purchased with that 

money!” She received no response from Appellant.

On January 23, 2008, Serben sent Appellant a letter stating that she was 

cancelling the contract. Serben also filed a complaint against Appellant with the 

Better Business Bureau and with the Flower Mound Police Department. A police 

detective assigned to the case spoke to Appellant by phone. Appellant told the 

detective that he had gotten sick and had turned the project over to somebody 

else. The detective asked to speak to Appellant in person. Appellant said he 

was in Houston for two weeks but that he would call when he got back to town. 

When the detective did not hear from Appellant, he forwarded the case to the 

District Attorney’s office.
6

In February 2009, Appellant was charged with committing a deceptive 

business practice. Trial was originally set for November 2011 but was reset 

repeatedly until it was finally set for August 7, 2012. On July 30, 2012, Appellant 

filed a motion for continuance stating,

[Appellant] is a severe diabetic who has been hospitalized numerous 

times since May 2012 in attempt to deal with the effects of his 

diabetes. [Appellant] has a cataract in his left eye that has 

completely blinded him and his right eye has a cataract that is 

diminishing his eyesight as well. [Appellant] has been scheduled for 

oral surgery on his jaw for August 1, 2012; retinal surgery on his 

right eye for August 7, 2012; and cataract surgery for August 31, 

20[12].

The trial court spoke on the phone to Appellant’s doctors and, at a pretrial 

hearing, told the parties that “they said he should be fine to come up here and sit 

with [his attorney] on the day after” the August 7 surgery. The trial court denied 

Appellant’s motion for continuance and set trial for August 9, 2012.

On August 9, 2012, before trial began, Appellant reurged his motion for 

continuance. Appellant’s wife testified that he had been prescribed hydrocodone

and that he did not appear to have a rational, cogent understanding of things she 

would tell him because he was on so many medications. She did not believe that 

he was able to aid his lawyer in effectively representing him. Appellant’s attorney

testified that he had attempted to go over documents with Appellant but “he 

would act as if he thought he understood what was in it, but appeared to be 

confused by what the document was.” Based on Appellant’s inability to see or 

read documents or seemingly understand what his attorney would tell him, his 
7

attorney testified, “But I don’t believe, based upon all of those things, that I can 

effectively represent [Appellant] in his current condition.” The trial court reviewed 

the side effects of hydrocodone but noted that Appellant’s doctors “did not see fit 

to tell [the court] that they expected him to have such reactions and be unable to 

perform—be here today.” The trial court denied the motion for continuance 

again.

A jury convicted Appellant of a deceptive business practice. The trial court 

sentenced him to spend 360 days in jail, suspended the punishment, and placed 

Appellant on community supervision for twenty-four months. Appellant then filed 

this appeal.

Discussion

I. Competency inquiry

In Appellant’s first issue, he argues that the trial court erred by denying his 

motion for continuance. Specifically, he argues that the trial court erred by failing 

to conduct an informal competency inquiry. We review a trial court’s ruling on a 

motion for continuance and its failure to inquire into a defendant’s competency to 

stand trial under an abuse of discretion standard. Moore v. State, 999 S.W.2d 

385, 393 (Tex. Crim. App. 1999), cert. denied, 530 U.S. 1216 (2000). A trial 

court abuses its discretion if its decision is arbitrary or unreasonable. Lewis v. 

State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995).

Appellant had the burden to prove by a preponderance of the evidence 

that he was incompetent to stand trial. See Tex. Code Crim. Proc. Ann. art. 
8

46B.003(b) (West 2006); Morris v. State, 301 S.W.3d 281, 285 (Tex. Crim. App. 

2009). Incompetency to stand trial is defined as a lack of

(1) sufficient present ability to consult with the person’s lawyer with a 

reasonable degree of rational understanding; or

(2) a rational as well as factual understanding of the proceedings 

against the person.

Tex. Code Crim. Proc. art. 46B.003(a). A defendant is presumed to be 

competent unless proved incompetent by a preponderance of the evidence. Id.

at 46B.003(b). However, “any ‘suggestion’ of incompetency to stand trial calls for 

an ‘informal inquiry’ to determine whether evidence exists to justify a formal 

competency trial.” Turner v. State, No. AP-76580, 2013 WL 5808250, at *11

(Tex. Crim. App. Oct. 30, 2013); see Tex. Code Crim. Proc. art. 46B.004 (West 

Supp. 2013) (“On suggestion that the defendant may be incompetent to stand 

trial, the court shall determine by informal inquiry whether there is some evidence 

from any source that would support a finding that the defendant may be 

incompetent to stand trial.”). “‘Some evidence’ is a low bar; it requires a showing 

of only a quantity more than none or a scintilla.” Brown v. State, No. PD-1723-

12, 2014 WL 1032054, at *5 (Tex. Crim. App. Mar. 19, 2014) (citing Turner, 2013 

WL 5808250, at *11). Evidence showing incompetence may include truly bizarre 

behavior by the defendant or a recent history of “severe mental illness or at least 

moderate mental retardation.” Montoya v. State, 291 S.W.3d 420, 425 (Tex. 

Crim. App. 2009), superseded by statute on other grounds as stated in Turner, 

2013 WL 5808250, at *11 & n.31.
9

The record shows that the trial court conducted an informal inquiry into 

Appellant’s competency to stand trial, once on July 30, 2012, and again on 

August 9, 2012. See Grizzard v. State, No. 01-06-00930-CR, 2008 WL 2611865, 

at *5 (Tex. App.—Houston [1st Dist.] July 3, 2008, no pet.) (mem. op., not 

designated for publication) (holding that trial court conducted an informal inquiry 

when it allowed testimony from defendant’s wife and doctor concerning 

defendant’s “voluntary overdose of prescription medication”).

The trial court spoke with Appellant’s doctor on July 30, 2012. The doctor 

told the trial court that Appellant “should be fine to come up here and sit with [his 

attorney]” and that he “could come to trial as long as he didn't have to drive.” 

Appellant’s attorney stated his concern that Appellant would be unable to see, 

and the trial court said,

THE COURT: Well, you’d better go call his doctor and get 

them to confirm with you how much they—but I want to resolve this 

today, yeah.

[APPELLANT’S ATTORNEY]: That’s fine.

THE COURT: I mean, if he’s got one eye and can see, I 

mean, you know . . . .

[APPELLANT’S ATTORNEY]: No, no, as long as he can see, 

I don’t care whether it’s one eye or he can see out of his ear. I just 

need him to be able to see.

THE COURT: Okay. Okay. Yeah, okay. Y’all go talk and 

you can go call your doctor and find out how good a shape he’s 

going to be, but right now I’m wanting to start this next Thursday and 

do this case and get it done.
10

On August 9, 2012, the trial court also heard testimony from Appellant’s 

wife and his attorney. Appellant’s wife testified that Appellant had diabetes and 

high blood pressure and that he was taking hydrocodone. She said that 

Appellant’s surgeries on his eyes had interfered with his vision and that he had

headaches and was dizzy. She testified that Appellant’s discharge instructions 

from the surgery center were “for him to basically not do anything strenuous, 

don’t lift anything heavy, rest.” She said that Appellant did not appear to have a 

rational, cogent understanding of things she said to him. She said,

And then a lot of times I talk to him and I ask him something, I 

have to repeat myself because sometimes he’s like, “I don’t 

understand what you said. What are you talking about?” That’s not 

him because usually, any other time, he’s—you know, he’s quick to 

pick up and understand what I’m saying.

She also testified that she showed him some documents, which he asked her to 

read to him, and although it “took him a while to even give [her] an answer,” he 

told her the documents needed to go to his attorney.

Appellant’s attorney testified that Appellant could not see or read 

documents he showed him. He said that Appellant “would act as if he thought he 

understood what was in [a document], but appeared to be confused by what the 

document was.” He said, “I can say with all certainty he is not able to assist me 

to effectively represent him in this case today.”

Appellant also testified at the hearing. He said, “I want to let the Court 

know that I understand this case and how long it’s been going on, back and forth. 

. . . [A]nd I understand the court process.” He explained,
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[My attorney] knows, and I don’t think the Court or the State 

know, that I’ve been ready to get this case over with since inception, 

since it was brought forth and explained to me originally some years 

ago.

That’s pretty much what I wanted to say. I have been ready. 

Unfortunately, my health has taken a turn.

Appellant testified,

I couldn’t understand some of the stuff that would normally be 

simple. Even this earlier here, I couldn’t—I lost the train of thought 

in the middle of a sentence. And that’s not me. I’m normally ready 

and on point, but this isn’t me. And I’m at a severe disadvantage 

being here, and I think the Court should know that.

The trial court stated that it was going to look at the Physicians Desk Reference

for the side effects of Appellant’s prescription drugs. The trial judge said, “I need

to look at that and see if hydrocodone would interfere with his mental abilities, 

because if it does, I’m going to continue this case. I don’t want him to be able to 

not understand what’s going on from a legal—from a medical position.” He read 

from the book,

[T]he most frequently reported adverse reactions include 

lightheadedness, dizziness, sedation, nausea, and vomiting. And 

then under Central Nervous System, it says drowsiness, mental 

clouding, lethargy, impairment of mental and physical performances, 

anxiety, fear, psychic dependency, and mood changes.

But I have talked—and in speaking to the doctors, they have 

not told me—they did not see fit to tell me that they expected him to 

have such reactions and be unable to perform—be here today.

Although some evidence showed that Appellant’s illnesses had diminished 

his vision and his medications may have diminished his comprehension skills, the 

testimony from Appellant, his wife, and his attorney was not evidence of the type 
12

supporting an incompetency finding such as “truly bizarre behavior” or “severe 

mental illness or at least moderate mental retardation.” Montoya, 291 S.W.3d at 

425; see also Grizzard, 2008 WL 2611865, at *6 (holding that trial court did not 

abuse its discretion by not finding appellant incompetent when, among other 

things, “appellant had met with his trial attorney immediately before the 

sentencing phase began and the attorney represented to the court that appellant 

was aware of what was going on and wanted to participate in the punishment 

phase of the trial, but due to his medical condition was not able to be present”). 

That Appellant was slow to comprehend things and that he had trouble recalling 

details did not render him incompetent to stand trial. See Morris, 301 S.W.3d at

292–93 (stating that a defendant’s amnesia is akin to “missing evidence,” which 

does not give rise to a finding of incompetence) (citing Morrow v. State, 293 Md. 

247, 254, 443 A.2d 108, 112 (1982)). Appellant’s own testimony was that he 

understood the nature of the proceedings. Appellant’s attorney stated that 

Appellant could not effectively assist in his representation, but his statement to 

the trial court that he “just need[ed Appellant] to be able to see” demonstrates

that his concern was with Appellant’s physical health, not his mental health. The 

trial court noted the possible side effects of hydrocodone, he also noted that 

Appellant’s doctor did not say that Appellant was suffering from any mental 

impairment.

The record is completely devoid of any evidence that Appellant suffered 

from mental illness, mental retardation, or that he committed any truly bizarre 
13

acts. Although Appellant’s wife testified that he did not have a rational 

understanding of things, she also testified that when she showed him documents, 

he understood what they were and that they needed to go to his attorney. And 

although his attorney testified that Appellant was unable to assist him in his 

representation, the trial court stated, “From the evidence I have . . . , I have the 

direct impression that [Appellant] is very uncooperative with his attorney.” 

Appellant’s attorney did not testify that Appellant was unable to answer questions 

or provide information to such an extent that he could be found to have no 

reasonable degree of rational understanding. In fact, Appellant’s attorney told 

the court that he did not think that Appellant needed a formal competency 

hearing. He said, “There’s a whole process for that that involves either 

somebody being hospitalized and examined or having an independent expert 

appointed to look at him. I don’t know that we need to get to that . . . .”

Appellant’s slowed responses because of his illnesses did not rise to the 

level of legal incompetence. See Tex. Code Crim. Proc. art. 46B.003(a); see 

also Gaines v. State, No. 02-02-00498-CR, 2004 WL 2320367, at *5 (Tex. 

App.—Fort Worth Oct. 14, 2004, pet. ref'd) (mem. op., not designated for 

publication) (“[A] learning disability or attention deficit hyperactivity disorder is an 

insufficient basis to claim incompetence to stand trial.”). The trial court told 

Appellant’s attorney at the July 30, 2012 hearing to call Appellant’s doctor to get 

a statement from the physician that Appellant would be unable to stand trial. 

Appellant did not provide any such statement at the August 9, 2012 hearing. In 
14

fact, Appellant’s testimony established his self-professed ability to understand the 

proceedings.

The court twice performed an informal inquiry and sought the opinion of 

medical professionals who had treated Appellant. The trial court’s reliance on 

the doctor’s opinion that Appellant could attend trial and its own assessment of 

the credibility of the witnesses was not an abuse of discretion. See Little v. 

State, No. 02-12-00086-CR, 2013 WL 5593297, at *3 (Tex. App.—Fort Worth 

Oct. 10, 2013, no pet.) (mem. op., not designated for publication) (“But Little 

points to nothing in the record that would compel this court to ignore the trial 

court’s firsthand factual assessment of his mental competency, a finding that this 

court is bound to afford great deference to, or the trial court’s reliance of an 

expert’s determination that he was competent to stand trial.”) (citing McDaniel v. 

State, 98 S.W.3d 704, 712 (Tex. Crim. App. 2003)). It was likewise not an abuse 

of discretion to refuse to grant the motion for continuance to conduct a formal 

incompetency hearing. We overrule Appellant’s first issue.

II. Sufficiency of the evidence

In Appellant’s second issue, he argues that the evidence supporting the 

finding that he had the required mens rea is insufficient. In our due-process 

review of the sufficiency of the evidence to support a conviction, we view all of 

the evidence in the light most favorable to the verdict to determine whether any 

rational trier of fact could have found the essential elements of the crime beyond 

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 
15

2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013). In 

determining the sufficiency of the evidence to show an appellant’s intent, and 

faced with a record that supports conflicting inferences, we “must presume—

even if it does not affirmatively appear in the record—that the trier of fact 

resolved any such conflict in favor of the prosecution, and must defer to that 

resolution.” Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). We 

must review circumstantial evidence of intent with the same scrutiny as other 

elements of an offense. Laster v. State, 275 S.W.3d 512, 519–21 (Tex. Crim. 

App. 2009) (overruling Margraves v. State, 34 S.W.3d 912, 919 Tex. Crim. App. 

2000)); see Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999) 

(“Circumstantial evidence, by itself, may be enough to support the jury’s 

verdict.”). “In a sufficiency analysis, all of the evidence admitted at trial to 

support the conviction should be reviewed equally on appeal.” Laster, 275 

S.W.3d at 521.

Appellant was accused of intentionally or knowingly selling Serben less 

than the represented quantity of a property or service. See Tex. Penal Code 

Ann. § 32.42(b)(2) (West 2011). A person acts intentionally “when it is his 

conscious objective or desire to engage in the conduct or cause the result.” Id.

§ 6.03(a) (West 2011). A person acts knowingly “when he is aware of the nature 

of his conduct” or “when he is aware that his conduct is reasonably certain to 

cause the result.” Id. § 6.03(b).
16

Between June and September 2007, Serben received and paid four 

invoices from Appellant totaling $74,555.50. Among the itemized items, 

Appellant charged Serben for clearing debris and shrubs, procuring permits, and 

purchasing and installing electrical materials, materials for “a/c unit, flex 

duct/accessories,” copper lines, solar tubes for skylights, cabinets, insulation, 

sheetrock, and a house fan. Serben testified that Appellant cleared some but not 

all of the debris and shrubs, did not install any cabinets, and did not perform any 

electrical work or work on the HVAC. Serben testified that Appellant did not 

install any duct work, vents, insulation, sheetrock, or a house fan. Serben did not 

recall seeing any electrical materials or copper wiring on the property, and she 

only saw one solar tube. Serben testified that Appellant’s permit from the Town 

of Flower Mound cost $300, that she was charged $800 for permits, and that she 

did not know of or see any other permits.

Despite assurances from Appellant on October 8, 2007 that he would 

complete the installation of the HVAC system, plumbing, sheetrock, and 

carpentry, Appellant took no steps to complete any of those services. Appellant 

sent Serben more assurances on November 24, 2007, but still did not do any 

more work on the house, and Appellant did not contact Serben again.

The evidence was that Appellant failed to deliver all of the construction 

services that he agreed to provide and for which he invoiced Serben. As the San 

Antonio court of appeals has explained,
17

[S]ection 32.42(b)(2) does not focus on a statement made in 

advance of the sale. Instead, section 32.42(b)(2) criminalizes 

“selling” less than the “represented” quantity. The term “sell” is 

defined in the statute as including “offer for sale, advertise for sale, 

expose for sale, keep for the purpose of sale, deliver for or after 

sale, solicit and offer to buy, and every disposition for value.” Thus, 

the definition of sale encompasses the delivery stage of the sale in 

addition to the offer stage of the sale. Moreover, a determination of 

whether the quantity sold was less than the quantity “represented” 

could only be made at the time of delivery. The statute’s use of the 

past tense “represented” further bolsters its intent to criminalize a 

defendant’s failure to deliver the quantity stated in the contract or 

otherwise promised.

Torres v. State, No. 04-12-00752-CR, 2013 WL 5942605, at *2 (Tex. App.—San 

Antonio Nov. 6, 2013, no pet.) (mem. op.). The evidence is therefore sufficient to 

support the jury’s finding that Appellant intentionally or knowingly sold Serben 

less than the represented quantity of his construction services. We overrule 

Appellant’s second issue.

Conclusion

Having overruled Appellant’s issues, we affirm the trial court’s judgment.

/s/ Lee Gabriel

LEE GABRIEL

JUSTICE

PANEL: MCCOY, MEIER, AND GABRIEL, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: April 17, 2014