Urrutia v. State
| Decision Date | 25 November 2019 |
| Docket Number | No. 08-18-00035-CR,08-18-00035-CR |
| Parties | VICTOR URRUTIA, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the County Criminal Court Number One of El Paso County, Texas
(TC# 20160C10391)
A jury convicted Victor Urrutia on two counts of criminal deceptive trade practices, both of which arose from a vehicle purchase and repair gone wrong.His appeal raises four issues: (1) whether the trial court erred in admitting evidence of Appellant's "bad" reputation for truthfulness; (2) whether he was entitled to introduce a demand letter from a parallel civil proceeding to show the complaining witness's bias; (3) whether text messages were properly authenticated; and (4) whether the trial court erred in sua sponte providing a jury instruction after the parties finished their closing remarks.
We conclude that his complaints lack sufficient merit to require reversal and affirm the judgment below.
This case arose out of a somewhat complicated purchase of a BMW automobile.The complaining witness, Zain Almarayati(Zain), worked as a linguist for the Army.Appellant operated a used car dealership known as Continental Auto Sales (Continental).Zain first met Appellant in the summer of 2011 when Zain purchased, without incident, a black 328i BMW from Continental.1Zain returned to Appellant's dealership in July 2013 to trade-in that BMW for another.As a result of that transaction, Zain believed that in October 2013he had purchased a red 2011328i BMW from Continental.And although Zain took possession of that car, he claimed that Appellant would not deliver clear title until Zain paid an additional $1,200 governmental fee.Zain's own research led him to believe there was no such government fee owed, so he declined to pay it.
To resolve that conflict, Zain and Appellant entered into the transaction that is the basis of this case.Under their oral arrangement, Continental would sell on consignment the 2011328i BMW.It would then either apply the proceeds of that sale towards the purchase of another vehicle or return the money.In actuality, the transaction worked this way.On February 23, 2015, Appellant sent Zain a text stating that he found a buyer for the 2011328i BWM for $22,500.The text stated Continental would take a $500 commission on that sale, another $500 commission on the purchase of the next vehicle, and asked for a $5,000 down payment, which would leave Zain with a $26,500 credit balance for the replacement vehicle.Zain agreed to arrangement that same day.Unbeknownst to Zain, the buyer was Sergio Quevedo who was the owner of the real property upon which Continental sat, and Appellant's business associate.2
After the sale of the 2011328i BMW, the search for the replacement vehicle dragged on.In June 2015, Zain asked for all his money back, but accepted a partial payment of $8,300, leaving a credit balance of $18,200.By July 2015, Zain and Appellant found a damaged 2015640i BMW through an on-line auction website.Zain did not inspect the vehicle before the auction (it was in California), but a photo showed some front-end damage.Appellant made bids on the vehicle through Continental.According to another text message introduced at trial, Appellant claimed they prevailed with the high bid at $28,350.The vehicle was delivered to Continental's dealership on July 17, 2015.
Zain understood that Continental needed to pay-off the auction site within thirty days.Continental did not, however, fund the transaction.To partially make up for that default, Appellant agreed to sell Zain an older Toyota Corolla at cost ($975) so he would have a vehicle to drive in the interim.Zain also began making additional payments to Continental towards the purchase of the 2015640i BMW($1,500 October 9, $8,000 on October 14, $2000 on November 16).When he pressed Appellant for transfer of the title, Zain claims Appellant offered "[e]very single excuse in the book[.]"Finally in March 2016, Appellant told Zain that he needed to pay an additional $5,500 because of the delay in paying the auction site.Appellant needed Zain to advance the funds because Continental did not have the money to complete the transaction.Appellant claimed he would repay the advance when his other car sales picked up.Zain claims he made the additional payment because he was "stuck between a rock and a hard place."
In April 2016, Appellant provided Zain a written bill of sale.It showed a sales price of $29,950 ($1,600 more than the winning bid), a credit on the prior sale of $21,000 ($1,000 less than what was represented), but in total showed a zero-balance due.Zain did not take immediatepossession of the car.Instead, it was left with Appellant who was establishing a body shop behind the car dealership.According to Zain, Appellant agreed to fix the car to make up for the overpayment of the original purchase price.
Zain began making frequent visits to shop to check on the progress of repairs.He noticed that parts were being removed from the vehicle.He was particularly concerned when he saw that the wheels from his 2015640i BMW were mounted on the 2011328i BMW that he had sold back in 2015.When he confronted Appellant about the wheels, he was told the new owner just wanted to see if they were compatible, and his wheels were then put back on his car.On a later visit, however, Zain noticed same thing--his original wheels had been switched again, and additional cooling and mechanical parts were taken out of his car.This time, the 2011328i BMW was no longer on the premises.He soon learned that Sergio Quevedo, who he understood was Appellant's business partner, now owned the 2011328i BMW, and had also bought Zain's wheels from Appellant for $2,000.
At that point Zain called the police to assist in taking possession of his 2015640i BMW.Appellant, however, told a responding police detective that he would not release the vehicle until Zain paid a $5,700 storage fee.The jury learned that Appellant's BMW was parked in the rear of the property, and in a portion of the lot that was being leased to Rodolfo Bernal who ran his own body shop.Bernal testified he was not charging any storage fee for the BMW.Bernal also recalled that Appellant for a time parked a vehicle in front of the BMW to block it in so Zain could not take it until they reached an "agreement."
After the police became involved, Sergio Quevedo first offered to give the wheels back to Zain if he was repaid their $2,000 purchase price, and later offered to just return them, but Zain refused.As of the time of trial, Zain had filed a civil lawsuit against Appellant, but had nevergained possession of the vehicle.
The jury charge tracked the State's two count information.The first count asked whether Appellant intentionally, knowingly, or recklessly committed a deceptive business practice by selling a 2015 BMW 640i to Zain, and then failed to deliver that vehicle.The second count asked the same question, but with reference to repair services on the vehicle.The jury returned a guilty verdict on both counts.The trial court assessed a one-year suspended sentence (but with twenty days of jail time as a condition of probation), community service hours, restitution of $13,217.90 paid over time, and return of the vehicle to Zain.
Appellant brings four issues for our consideration.The first three relate to evidentiary rulings, and the last issue relates to a statement by the trial judge to the jury.
In his first three issues, Appellant complains of the admission and exclusion of evidence.Issue One complains that the trial court erred in admitting opinion evidence that Appellant's reputation for truthfulness was "bad."Issue Two complains that the trial court erred in excluding a demand letter that Zain personally authored, and which stated that a successful criminal prosecution would expose Appellant to deportation.Finally, his third issue complains that the State failed to lay a proper predicate for the admission of several text messages.We start with our standard of review.
We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard.Martinez v. State, 327 S.W.3d 727, 736(Tex.Crim.App.2010).A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement.Taylor v. State, 268 S.W.3d 571, 579(Tex.Crim.App.2008).We may not substitute our own decision forthat of the trial court.Moses v. State, 105 S.W.3d 622, 627(Tex.Crim.App.2003).Moreover, "[i]f the ruling was correct on any theory of law applicable to the case, in light of what was before the trial court at the time the ruling was made, then we must uphold the judgment."Page v. State, 213 S.W.3d 332, 337(Tex.Crim.App.2006), quotingSauceda v. State, 129 S.W.3d 116, 120(Tex.Crim.App.2004).
Even if the admission or exclusion of evidence was erroneous, we still must assess harm.Gonzalez v. State, 544 S.W.3d 363, 373(Tex.Crim.App.2018).Evidentiary errors generally constitute non-constitutional error which we review under TEX.R.APP.P. 44.2(b).Gonzalez, 544 S.W.3d at 373;Walters v. State, 247 S.W.3d 204, 219(Tex.Crim.App.2007).An appellate court must disregard a non-constitutional error that does not affect a criminal defendant's "substantial rights."TEX.R.APP.P. 44.2(b);Casey v. State, 215 S.W.3d 870, 884-85(Tex.Crim.App.2007).Under that rule, an appellate court may not reverse for non-constitutional error if the court, after examining the entire record, has a fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury's verdict.Casey, 215 S.W.3d at 884-85.In doing so, we consider (1) the character of the alleged error and how it might be connected to other evidence; (2) the nature of the evidence supporting the verdict; (3) the existence and degree of additional...
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