Bruni v. State

• Decision Date: 04 April 1984
• Docket Number: No. 3-83-115-CR,3-83-115-CR
• Citation: 669 S.W.2d 829
• Parties: Alejandro BRUNI, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 829

669 S.W.2d 829

Alejandro BRUNI, Appellant, v. The STATE of Texas, Appellee.

No. 3-83-115-CR.

Court of Appeals of Texas Austin.

April 4, 1984.

Rehearing Denied April 25, 1984.

Charles R. Kimbrough, Blundell & Moore, Lockhart Appointed Counsel, for appellant.

Jeffrey Van Horn; Criminal Dist. Atty., Lockhart, for appellee.

Before SHANNON, SMITH and GAMMAGE, JJ.

EARL W. SMITH, Justice.

Alejandro Bruni appeals from a judgment of conviction of theft on or about May 27, 1977, of property valued at over $10,000, a second degree felony prior to the 1983 amendments to Tex.Pen.Code Ann. § 31.03 (1974). Punishment was assessed by the court, after a jury verdict of guilty, at confinement in the Department of Corrections for ten years and a fine of $10,000. The court found that restitution was due to victims in the amount of $47,173, apportioned as follows: $43,173 due John and Betty Ross and $4,000 due Ann Niemann.

Bruni assigns four grounds of error: (1) that the evidence is insufficient to sustain the conviction; (2) that the trial court erred in permitting evidence before the jury of confidential communications between Bruni and his former spouse during the marriage relationship; (3) that the trial court erred in its judgment and sentence in finding that restitution was due to certain individuals who were not victims of the offense as alleged by indictment and (4) that the trial court erred in its judgment and sentence in finding that restitution was due to Ann Neimann in the amount of $4,000. We overrule grounds of error Numbers (1) and (2), sustain in part grounds of error Numbers (3) and (4), reform the judgment and sentence of the trial court, and as reformed, affirm the judgment of the trial court.

In his ground of error number one, Bruni challenges the sufficiency of the evidence. Tex.Pen.Code Ann. § 31.03 (Supp.1983) provides:

(a) A person commits an offense [theft] if he unlawfully appropriates property with intent to deprive the owner of property.

(b) Appropriation is unlawful if:

(1) it is without the owner's effective consent....

Tex.Pen.Code Ann. § 31.01(4) and (2) (1974) provides:

(4) "Effective consent" includes consent by a person legally authorized to act for the owner. Consent is not effective if:

(A) induced by deception or coercion....

(2) "Deception" means:

(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....

Appellant correctly states the law to be that the evidence must be sufficient to show that Bruni appropriated over $10,000 with intent to deprive the owner of such funds by creating or confirming a false impression of fact, which Bruni did not believe, and which affected the owner's judgment in the transaction. McClure v. State, 648 S.W.2d 667, 677 (Tex.Cr.App.1983) (opinion on State's motion for rehearing). The thrust of Bruni's argument is that he merely obtained the money pursuant to a contract which he partially performed and that he failed to return the money as agreed, after failure to perform fully under the contract. Thus, he contends, the evidence is insufficient to show that promises of Bruni were false at the time of the appropriation. We disagree.

The evidence is uncontradicted and appellant admitted that he received a total of $40,000 from John Ross and his wife Betty Ross. There is abundant testimony in the record from which the jury could believe beyond a reasonable doubt that Bruni obtained the money from Ross et ux. by representations which Bruni knew to be false at the time they were made and which created a false impression of fact affecting the judgment of Ross et ux. in the delivery of the $40,000 to Bruni. After courting John Ross' sister Ann Neimann (Ann) for approximately a year, Bruni met John and Betty Ross (John and Betty) at the Little Rock home of relatives of John and Ann. Bruni was born in Mexico under the name of Alejandro Baraja. After his family moved to the United States, he changed his last name to Bruni.

Bruni represented to John and Betty that: he was a member of the prominent, wealthy Bruni family of Laredo; he had existing electronic and cabinet businesses in Austin that were "really going well"; he had been awarded numerous bids from the State Board of Control; he was "making all this money" and needed to expand; he wanted to open shops in Lockhart and possibly New Braunfels; he needed money for the expansion; he planned to marry Ann; he wanted to put the business in the family and that he believed in families living together. He further told John and Ann that: the expanded business would make office furniture, school desks, etc., for which he would be awarded bids from the "I.R.S." and the State Board of Control; the parent company, a corporation to be formed, would be called Bruni-Ross Enterprises, with subdivisions under the parent company, one of which would be South Texas Mills at Lockhart; when the parent company was formed, it would be owned fifty percent by John and Betty and fifty percent by Bruni and Ann and that if John and Betty at any time became unhappy, they could "have their money back."

While making the representations he showed to John and Betty: instruments purporting to be awards of bids from the State Board of Control; his personal financial statement which indicated he had a net worth of $3,764,346, consisting of $3,290,000 in real estate, $165,886 in cash, $233,860 in accounts receivable and other assets; a resume indicating that he had attended the Universities of Alaska, Colorado, Arizona, and Texas, the Institute of Applied Sciences in Chicago and that he had received degrees in Electrical Engineering and Business Administration; maps and plots of real estate subdivisions where the company would engage in development.

Before Bruni's marriage to Ann on April 24, 1977, he made similar representations to Ann concerning his family background and indicated he was doing very well in his businesses. Prior to the marriage, Ann learned from her brother and sister-in-law that they were planning to go into business with Bruni. Bruni told Ann that he wanted to make the venture a family business corporation, with all the family to be involved in five or six mills in Texas. She said he painted a "very rosy picture."

On February 11, 1977 Bruni signed a skeletal contract with John and Betty, in which he acknowledged receipt from them of $10,000, with additional sums of $10,000 to be paid by them on April 5, 1977 and another $10,000 in the first week of June, 1977. On receipt of the final payment, a formal agreement was to be signed; in the meanwhile, John and Betty were to be silent partners. In reliance on the promises, John and Betty sold their home near Houston; John quit his job; Betty sold her beauty salon and they moved to New Braunfels. John was assured by Bruni that he would be put on the payroll. After they moved to New Braunfels, Bruni obtained another $10,000 (bringing the total to $40,000) from John and Betty on a representation that he needed the money to make some sort of bond and that if they wanted "the business to go," he had to have the money.

Though Bruni had previously leased a building in Lockhart and had leased some equipment worth $4,262.52, the business never got started. No work was ever completed. The building and equipment were subsequently repossessed. The $40,000 was supposed to be banked in the company name at the First National Bank in New Braunfels but such was not done. Suffice it to say that all material representations were proved to be false.

John learned that creditors were not being paid and that insufficient checks had been given by Bruni. When queried about their investment, Bruni always had an explanation--that the money was in another place or in another bank, that it "was taken care of" and that he would show it to John and Betty. John Ross finally demanded that the money be returned. Bruni gave him a note for $43,000 ($40,000 for the investment and $3,000 for unpaid salary). When Ross asked about the equipment, which they discovered to be missing, Bruni told him that it had been sent back for the motors to be re-wired for larger capacity. Finally, upon repeated demands for the return of the money, Bruni supposedly went to Laredo on a Thursday, came back on Sunday, and at a meeting with John, Betty, Ann and an employee, announced that he did not have the money. At the same time Bruni admitted that he was an "alias," that his real name was not Bruni. Ross stated that Bruni told him he had invested the money in a pipeline from "Laredo to the United States."

While Bruni was gone to Laredo, John, Betty and Ann went to the South Texas Mills office. There they found that Bruni had opened bank accounts in some seven banks in central Texas. The records were obtained and through voluminous exhibits, the state proved his system of moving sums of money from bank to bank and issuing "hot checks." Except for a rather nominal sum, it could not be established that the $40,000 was used for its intended and promised purpose, i.e., investment in the business. Some of it was traced to Bruni's own use. He could not account for the remainder.

Immediately after the encounter with John, Betty and Ann in October, 1977, Bruni fled (leaving his son by another marriage with Ann) and was not seen again by the parties until October, 1982, the date of trial. Authorities finally located him in Seaford, Delaware, from which he was extradited for trial.

Bruni testified. He admitted telling John, Betty and Ann that he was Italian. He was vague as to who first brought up the business venture but acknowledged receiving the money. He admitted giving the "hot checks," admitted flight because he thought he was going to be arrested the next day, admitted his parents had lived in San Antonio for twenty years, acknowledged that he did not have any of the...