Kent v. State

• Decision Date: 28 August 2014
• Docket Number: No. 14–13–00375–CR.,14–13–00375–CR.
• Citation: 447 S.W.3d 408
• Parties: Kevin Lavelle KENT, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

447 S.W.3d 408

Kevin Lavelle KENT, Appellant

v.The STATE of Texas, Appellee.

No. 14–13–00375–CR.

Court of Appeals of Texas, Houston (14th Dist.).

Aug. 28, 2014.

Discretionary Review Granted Feb. 4, 2015.

James Pons, Houston, for Appellant.

Eric Kugler, Houston, for the State.

Panel consists of Justices CHRISTOPHER, JAMISON, and McCALLY.

OPINION

SHARON McCALLY, Justice.

In an issue of first impression, we must decide whether statutory violations aggregated for purposes of Section 31.09 of the Penal Code, the aggregate theft statute, are elements that the jury must unanimously agree upon, or whether the violations are mere manner and means for which no unanimity is required.¹ Determining what elements of a statute require unanimity is a matter of legislative intent. In construing the aggregate theft statute, we conclude that unanimity is required for the gravamina of the underlying statutory violations that are aggregated for purposes of the offense of aggregate theft.

Because the jury charge did not require this unanimity and appellant suffered some harm, we reverse and remand for a new trial.

I. Background

Appellant was charged by complaint with theft of money in the aggregate of over $200,000 from Barbara Allen, Tamara Allen, Larry Aniol, and Joann Aniol during a period of five years. The State presented evidence that the Aniols, husband and wife, wished to sell their commercial property, River Gardens, to Barbara Allen for $19.5 million. Tamara Allen was Barbara's daughter and business partner. An intermediary put the Aniols and Barbara in touch with appellant and his d/b/a, Orlando Mortgage Company, so appellant could serve as a mortgage broker for Barbara and secure financing for the transaction. The State presented evidence that appellant convinced the Aniols and Barbara to transfer money to him by his use of various deceptions, including lies about his ability to secure financing, the involvement of his father, statements on his website about his past deals, and a purported $50 million line of credit issued to Orlando Mortgage. Ultimately, the State adduced evidence that the Aniols and Barbara transferred over $1.4 million to appellant. The Aniols and Barbara believed their money was being held in escrow, but when the sale never closed, appellant did not return the money to them.

Joann and Barbara testified about the various transfers made to appellant on the River Gardens transaction. Barbara started speaking with appellant in February 2003. He said he would be able to provide 100 percent financing for Barbara to purchase River Gardens. Appellant told Barbara she could “buy down” the interest rate from 7.5 percent to 4.95 percent if she gave him $200,000. Appellant asked Joann to help Barbara buy down the interest rate. The Aniols agreed to help, so Barbara and the Aniols signed a “short term loan” agreement for $200,000. The Aniols gave Barbara $200,000 with the understanding that the money would go into escrow and the Aniols would be repaid at closing. Barbara then transferred the $200,000 to appellant in May 2003.

Appellant called Barbara again and offered a buy down on the interest rate to 3.95 percent for an additional $100,000. Barbara gave appellant $100,000 in June 2003. In October 2003, appellant asked for a $300,000 “good faith deposit” from the Aniols. Appellant and the Aniols signed a document memorializing that the $300,000 was a “good faith assurance on [the Aniols'] part to [appellant's] father, who is making available a reserve account to Barbara Allen for 18 months of debt service.”² The document indicated that the money would be placed in escrow, and “[u]nder any and all circumstances, the $300,000 will be returned to [the Aniols] in its entirety.” The Aniols sent appellant another $150,000 in February 2004, which according to Joann “was to be used as part of the points down, helping with the points.” She understood it was going into an escrow account and would be returned to the Aniols at the time of closing.

In August 2004, appellant signed and faxed to the Aniols an escrow agreement acknowledging the Aniols' deposit of $450,000 to date “in a non-interest bearing account to escrow.” The agreement states that if “the sale does not or will not otherwise occur, the $450,000.00 paid by Seller into escrow will automatically be paid and returned to Seller in immediately available funds.”

In December 2004, appellant requested another $125,000 from Barbara, and again the Aniols loaned Barbara the money with the understanding the money would be put into an escrow account and they would be paid back at closing. Barbara gave the money to appellant with the understanding it was going into escrow. Joann thought this money was needed because of a difference in appraisal values of her property, but Barbara testified this money was to provide “good faith” for the “people at the bank who controlled all the loans.”

In May 2005, appellant asked the Aniols to “put up” an additional $200,000 for “debt service.” The Aniols sent the money with the understanding the money would go into an escrow account and be returned at the time of closing. Ultimately, appellant asked the Aniols for an additional $250,000 in November 2005. But Joann was “so disgusted I just wanted to scream,” and she and her husband told appellant the sale was not going through and that they wanted their money back. The Aniols sent appellant a demand letter in December 2005 for return of their $775,000, and they sent Barbara a demand letter for return of the initial $200,000 loan. Joann testified that she prepared a document, State's Exhibit 65, which identifies the five separate transfers the Aniols made to appellant (directly and through Barbara) over the course of about two years. The total amount the Aniols transferred to appellant was $975,000, including the $200,000 and $125,000 loans to Barbara in May 2003 and December 2004, respectively. Joann testified that appellant never returned any of the money, despite the lack of a closing for River Gardens.

When the Aniols called off the River Gardens deal, appellant told Barbara that he had returned the Aniols' money. He also offered to provide Barbara a $25 million line of credit toward the purchase of a hotel. However, to keep the line of credit open, appellant said that the bank wanted “good faith debt service” money. So Barbara transferred an additional $337,000 to appellant over the next several years with the understanding the money was going into escrow, as follows:

• March 17, 2006	$74,000
	• September 8, 2006	$10,000
	• August 20, 2006	$50,000
	• November 30, 2006	$50,000
	• April 30, 2007	$15,000
	• May 30, 2007	$15,000
	• July 26, 2007	$30,000
	• September 28, 2007	$13,000
• December 3, 2007	$40,000
	• January 11, 2008	$10,000
	• February 28, 2008	$5,000
	• March 13, 2008	$25,000

Barbara testified that although some payments may have been made by Tamara, it was like Barbara sending the money because they were partners; and if Barbara sent money, it was like Tamara sending the money.

Barbara attempted to secure financing for “maybe under 10” hotels, but every time she and the hotels' owners complied with appellant's requests, “there would be a problem that he could not complete it.” Ultimately, when the last hotel owner decided to pull out of the deal due to appellant's labor-intensive demands and prolonged closings, Barbara demanded return of her money from appellant. He did not return any of her money.

Appellant testified that the various amounts transferred to him by the Aniols and the Allens were fees for services rendered—he considered all the payments to be “[g]ood faith deposits for others putting cash up on their behalf.” He claimed that he and other partners were contributing funds to a lender on behalf of the Aniols and Barbara. He also contended that he was a party to a general release from liability for the River Gardens transaction and thus owed nothing for that transaction.

Joann acknowledged that she had “constant phone calls” with appellant during the years that she was trying to sell River Gardens to Barbara. She had “practically daily conversations” with appellant, and the Aniols would send documents to appellant “[d]aily, hourly practically sometimes.” The Aniols sent appellant thousands of documents, and they received 900 faxes from appellant. Joann acknowledged that the documents the Aniols sent to appellant were typical for underwriting. She also testified that she did not know exactly how appellant was going to be paid in the transaction, and she had lawyers reviewing the transaction beginning in the fall of 2004.

The trial court charged the jury with the following application paragraph:

Now, if you find from the evidence beyond a reasonable doubt that in Harris County, Texas, the defendant, Kevin Lavelle Kent, heretofore on or about May 15, 2003 and continuing through March 13, 2008, did then and there unlawfully, pursuant to one scheme or continuing course of conduct, appropriate, by acquiring or otherwise exercise [sic] control over property, namely, money, owned by Barbara Allen or Tamara Allen or Larry Aniol or Joann Aniol, with the intent to deprive Barbara Allen or Tamara Allen or Larry Aniol or Joann Aniol of the property and the total value of the property appropriated was over two hundred thousand dollars, then you will find the defendant guilty of theft of property of the total value of over two hundred thousand dollars, as charged in the indictment.

Appellant objected to the jury charge because it did not require the jury to agree unanimously that the State proved beyond a reasonable doubt each element of the offense, arguing that the Court of Criminal Appeals “considers each theft an element of the offense in an aggregated case.” Appellant asked that each underlying theft be listed by date, amount of money, and the owners.³ The trial court overruled appellant's objection.

The jury found appellant guilty, and the trial court assessed punishment at sixty years' confinement. The court also...