Kevin Neal Kissire v. State ( 2020 )

Modify Judgment, Affirm in Part, Reverse and Remand in Part; Opinion
Filed August 31, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00307-CR
KEVIN NEAL KISSIRE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 380th Judicial District Court
Collin County, Texas
Trial Court Cause No. 380-83135-2017
MEMORANDUM OPINION
Before Justices Myers, Whitehill, and Pedersen, III
Opinion by Justice Pedersen, III
Appellant Kevin Kissire was charged with the offense of theft in an amount
between $30,000 and $150,000, a third-degree felony. After a jury found him guilty
as charged, the trial court assessed a punishment of eight years’ confinement,
probated for five years. In three issues on appeal, appellant challenges the legal
sufficiency of the evidence to prove his intent to deprive the complainant of his
property and to prove the minimum necessary amount for a third-degree felony. He
also contends the trial court erroneously admitted extraneous evidence. We modify
the judgment, we affirm the conviction as set forth in the modified judgment, and
we remand the case for a new trial on punishment only.
I. Background
Appellant was the owner of Standard Steel, a company that brokered the
design and purchase of steel buildings from manufacturers. At trial, Jaime Fernandez
testified that in 2015, he began thinking about building a showroom for his pool
business. While he was still considering what type of building to construct, one of
his landscaping clients, Pastor E.G. Roberts, told Fernandez that he was going to use
appellant to build a steel building for his church. A few weeks later, Roberts called
Fernandez and invited him to join Roberts and some of his church board members
for a tour of one of appellant’s steel buildings, a church in Rockwall. Appellant gave
the group a tour of several of his buildings.
Several months later, Fernandez contacted appellant to get a quote on what it
would cost to build a steel building for his showroom. During several subsequent
conversations, appellant assured Fernandez that he would provide blueprints, obtain
permits, build the foundation, furnish the metal framing, and erect the building.
Fernandez understood that he would not receive his building until a contract was
signed and the deposit was paid in full.
Initially, Fernandez was reluctant to sign a purchase agreement because he
was not ready to pay the deposit amount requested by appellant. Also, Fernandez
was dissatisfied with appellant’s initial drawings of the proposed building. Appellant
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reassured Fernandez that changes to the building design could be made later, and he
pressured Fernandez to sign the agreement before the price of steel increased.
Appellant told Fernandez he could “lock in” the price of steel with a partial payment
toward the deposit. On September 29, 2016, Fernandez signed a purchase agreement
and paid appellant $18,000 toward the agreed $36,245 deposit. Several weeks later,
Fernandez requested that specific changes be made to the building design. Appellant
advised Fernandez that the changes would increase the deposit amount by $4,178.
Fernandez could not remember if he signed a change order, but he did remember
paying the additional $4,178.
In November 2016, appellant told Fernandez the price of steel would be going
up. He said that to “lock in” the price of steel, Fernandez had to make another
payment toward the deposit. Fernandez offered to pay another $7,500. When
appellant agreed that amount would suffice, Fernandez gave him a check for $7,500.
In December 2016, appellant contacted Fernandez about paying the remainder
of the deposit. Although appellant had yet to provide Fernandez with blueprints, he
told Fernandez that his building would be delivered on January 15, 2017. Fernandez
insisted appellant come to his property in Wylie, Texas to pick up the check.
Fernandez was concerned that appellant had never been to the building site, and
Fernandez expected him to take measurements. Instead, appellant sent Jason White,
his project coordinator, to Fernandez’s building site. White did not take
measurements; he just picked up Fernandez’s check for $14,800.
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Fernandez’s building was not delivered in January. When Fernandez called
appellant to inquire about his building, appellant’s phone had been disconnected.
Fernandez then called White, the project coordinator, but he did not answer his
phone. Fernandez drove to appellant’s business address but found no business there.
Fernandez located a home address for appellant but when he arrived at the house, he
discovered it was an empty rental house. Fernandez testified that his assistant found
posts and photographs on Facebook indicating that appellant was in the Philippines.
Wylie Police Department Detective Brian Porter was assigned to investigate
Fernandez’s complaint. He reviewed public records to determine that appellant was
the owner of Standard Steel. He knew that Fernandez’s three checks had been
deposited at American National Business Bank so he subpoenaed Standard Steel’s
bank account records from the bank. Porter testified that although the bank account
was a business account, many of the payments made from that account were for
personal expenses such as gym membership charges, I-Tunes charges, and restaurant
charges. He also saw that significant sums had been wire transferred overseas.
Porter explained that he searched for appellant’s name on Facebook and
ultimately found a woman by the name of JeanNylyn Jabil Kissire. He found photos
of appellant on JeanNylyn Jabil Kissire’s Facebook page. Porter testified that at least
one of the wire transfers from the Standard Steel account had transferred money to
JeanNylyn Jabil Kissire. He noted that by January 2017, no money remained in the
Standard Steel bank account and in fact, it had been overdrawn by over $7,500.
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Porter testified that he also interviewed Roberts, and searched Standard Steel’s bank
records for evidence with respect to deposits made by Roberts.
Appellant testified in his own defense. He and his ex-wife started Standard
Steel in 2000. Most of the company’s business was generated through internet leads
from the company’s websites. Standard Steel had a number of profitable years. In
2015, however, the company was having difficulties and appellant was forced to cut
overhead. He closed his Rockwall office and laid off most of his employees. By
2016, he and Jason White, his project coordinator, were Standard Steel’s only
employees. Appellant worked out of his home office.
In April 2016, about the time that appellant began negotiating the building
sale to Fernandez, appellant met a Filipino woman online. Several months later, he
traveled to the Philippines to meet JeanNylyn Jabil in person. While still in the
Philippines, an acquaintance suggested that he open a call center there. He returned
home to the United States about a month later, but quickly scheduled a second trip
to the Philippines to investigate the possibility of opening a call center there. He
returned to the Philippines mid-October. Before leaving the United States, appellant
wired money from his Standard Steel account to Jabil to cover food and other
expenses. Appellant acknowledged that even before that wire transfer, he used the
business account for personal purchases, such as his airplane tickets to the
Philippines.
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During this second trip, appellant decided to move to the Philippines to open
a call center there to rejuvenate his business back home. When appellant returned to
Texas two weeks later, he and White packed his belongings and moved them into
storage. He forwarded his mail to his mother’s address in Las Vegas, Nevada. He
again wire transferred money from the Standard Steel bank account to Jabil, and
flew back to the Philippines on December 2, 2016, leaving White in charge of
Standard Steel.
During his first two trips to the Philippines, appellant continued to pay
White’s base salary. In late October or early November, appellant stopped paying
White’s base salary, and White agreed to work part-time for commission only.
Appellant had limited phone service in the Philippines, so he communicated with
White through Messenger. He testified that he expected White to deal with
Fernandez because he would make money from the job if it were completed.
Appellant was unable to open his own call center in the Philippines—it was
too expensive. And he discovered that, as a foreign national, he was restricted from
renting callers in an established call center. He and Jabil got married; however, with
no income, he found himself stranded in the Philippines and unable to return to the
United States. Finally his brother sent him money so he could return home.
Appellant described his meetings and negotiations with Fernandez. He
admitted receiving Fernandez’s partial payments toward the amount of the deposit
requested. However, according to appellant, Fernandez asked that changes be made
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to the design of his building but failed to sign the change order. Without a signed
change order, appellant would not have ordered blueprints for Fernandez’s building.
Appellant claimed he intended to deliver a building to Fernandez, and he claimed he
would have put the building into production if Fernandez had signed the change
order and the release for production. However, appellant admitted that once he was
finally back in the United States, he never contacted Fernandez about completing his
building. And he admitted that he never returned any of the money Fernandez paid
toward the deposit.
The jury convicted appellant of theft by deception of more than $30,000 but
less than $150,000, a third-degree felony. The trial court sentenced appellant to eight
years in prison, probated for five years. Appellant timely filed this appeal.
II. Discussion
A. Intent to Deceive
In his first issue, appellant claims that a breach of contract does not amount to
theft and that the State failed to prove that he intended to deceive Fernandez when
he took his money. In evaluating the legal sufficiency of the evidence, we consider
the evidence in the light most favorable to the verdict to determine whether any
rational fact finder could have found the essential elements of the offense beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State,
560 S.W.3d 224, 226 (Tex. Crim. App. 2018). This standard of review allows a jury
to resolve fact issues and to draw reasonable inferences from the evidence. Jackson,
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443 U.S. at 319; see Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014). With
respect to the testimony of witnesses, the jury is the sole judge of the credibility and
weight to be attached thereto, and when the record supports conflicting inferences,
we presume that the jury resolved the conflicts in favor of the verdict, and we defer
to that determination. Jackson, 443 U.S. at 319; see Balderas v. State, 517 S.W.3d
756, 766 (Tex. Crim. App. 2016). “Each fact need not point directly and
independently to the guilt of the appellant, as long as the cumulative force of all the
incriminating circumstances is sufficient to support the conviction.” Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
A person commits theft if he “unlawfully appropriates property with intent to
deprive the owner of property.” TEX. PENAL CODE ANN. § 31.03(a). This
appropriation of property is unlawful if it is done without the owner’s effective
consent. Id. § 31.03(b)(1). Consent is not effective if it is induced by deception. Id.
§ 31.01(3)(A). “Deception” in the context of this case means:
promising performance that is likely to affect the judgment of another
in the transaction and that the actor does not intend to perform or knows
will not be performed, except that failure to perform the promise in
issue without other evidence of intent or knowledge is not sufficient
proof that the actor did not intend to perform or knew the promise
would not be performed.
Id. §31.01(1)(E). Viewing the evidence in the light most favorable to the verdict, we
must determine whether any rational trier of fact could have found the essential
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elements of the offense of theft as so defined beyond a reasonable doubt. Johnson,
560 S.W.3d at 226.
In a theft case arising from a contract, the State is required to prove that the
defendant intended or knew that he would not perform his obligations at the time
money changed hands. See Taylor v. State, 450 S.W.3d 528, 536 (Tex. Crim. App.
2014); Wirth v. State, 361 S.W.3d 694, 697 (Tex. Crim. App. 2012). “A contractor
accused of theft may not be convicted of that offense on the theory that he acquired
a down payment from his customer by deception if there is no reason to doubt from
the evidence that he had every expectation at the time that the money changed hands
of fulfilling his contractual obligation; at the time of the down payment, the customer
paid voluntarily, and the accused neither intended nor knew he would not perform.”
Taylor, 450 S.W.3d at 536 (citing Phillips v. State, 640 S.W.2d 293, 294 (Tex. Crim.
App. 1982)). However, a contractor may still be found guilty of theft if—at some
point after formation of the contract—he forms the mens rea to deprive and
“appropriates additional property by deception; that is, he induces his customer to
make further payment on the contract while no longer intending to perform, or at
least knowing that he will not.” Id. at 537 (citing Ehrhardt v. State, 334 S.W.3d 849,
856 (Tex. App.—Texarkana 2011, pet. ref’d)). In reviewing the sufficiency of the
evidence, we consider events occurring before, during and after the commission of
the offense and may rely on the defendant’s actions that show an understanding and
common design to do the prohibited act. Wirth, 361 S.W.3d at 697. Intent may also
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be inferred from proof that the defendant engaged in other similar, recent
transactions. PENAL § 31.03(c)(1); see Johnson, 560 S.W.3d at 227.
Appellant argues that the evidence does not show that he did not intend to
fulfill his contractual obligations at the time Fernandez made his deposit payments.
However, the evidence reveals that appellant needed Fernandez’s deposit payments
to fund his trips and extended stay in the Philippines. Upon appellant’s return from
his first trip to the Philippines, he pressured Fernandez to sign the purchase
agreement, warning that the price of steel was going up but Fernandez could “lock
in” the price of steel by signing the purchase agreement and making a partial
payment. This was a lie. The price of steel never went up. Furthermore, appellant
knew that signing the agreement and making a deposit would not “lock in” the price;
only releasing the building into production would lock in the price. Just days after
Fernandez gave appellant the initial payment of $18,000, appellant wired over
$3,000 to Jabil and wrote himself checks for $2,800 in cash. Appellant then returned
to the Philippines and remained there until November.
In addition, there is evidence that appellant induced Fernandez to make further
payments on the contract while no longer intending to perform, or at least knowing
that he would not. See Taylor, 450 S.W.3d at 537. When appellant returned home
from his second trip to the Philippines, he contacted Fernandez and urged him to
make another payment, again telling him that the price of steel was going up and the
payment was required to “lock in” the price of steel. This was another lie. Fernandez
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gave him another partial payment of $7,500. According to the evidence, appellant
deposited Fernandez’s payment, wrote himself a check for $9,000 in cash, moved
all of his belongings into storage, and flew back to the Philippines. Appellant did not
tell Fernandez that he was planning to leave the country for an extended period of
time.
Two weeks later, the appellant called Fernandez again and told him he needed
to pay the balance of the deposit. This time Fernandez balked, complaining that
appellant had never been to the building site to take measurements. Appellant did
not tell Fernandez that he was in the Philippines. Instead, appellant told Fernandez
that White would meet him at his property to take measurements and pick up the
check. He also told Fernandez that the building would be delivered on January 15,
2017. This was yet another lie. The release for production documentation had not
been signed, and appellant never notified the manufacturer to begin work on
Fernandez’s building. Nevertheless, based on appellant’s additional lie, Fernandez
agreed to pay $14,800, the amount appellant told him was the balance due.
Fernandez gave White a check when he came to the property. The check was
deposited into the Standard Steel bank account, and shortly thereafter, appellant
wired $15,200 to Jabil, leaving the account with a negative balance.
At this point, Fernandez had given appellant three checks for a total of
$40,300. Appellant claims that Fernandez did not get his building because he did not
sign the change order, sign the release for production, and pay the $122.50 balance
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owed on the deposit. However, appellant did not: (i) inform Fernandez there was a
balance due on the deposit; (ii) inform Fernandez that he needed to sign a change
order and a release for production; (iii) deliver blueprints for the building; or (iv)
submit a purchase order to the steel manufacturer to begin production on
Fernandez’s building. He lied when he promised Fernandez that the building would
be delivered on January 15, 2017. Appellant knew that he had not released the
building for production, and he knew that Fernandez would not be receiving the
building. Appellant took Fernandez’s payments and disappeared. See Urias v. State,
No. 11-16-00098-CR, 2017 WL 2698100, at *4 (Tex. App.—Eastland June 22,
2017, no pet.) (mem. op., not designated for publication) (holding jury could infer
contractor’s appropriation of customer’s payment was deceptive and without
consent because contractor’s disappearance indicated he never intended to perform).
This Court is not the fact finder. The jury could have inferred from the
evidence that appellant intended or knew that he would not perform his obligations
at the time money changed hands. This determination was not so outrageous that a
reasonable trier of fact could not agree. See Wirth, 361 S.W.3d at 698. Our review
of the record reveals legally sufficient evidence to support the jury’s verdict of guilt.
We resolve appellant’s first issue against him.
B. Admission of Extraneous Evidence
In his second issue, appellant argues that the trial court erred in allowing the
State to present testimony from E.G. Roberts and Phillip Ward, two Standard Steel
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customers who also gave appellant large sums of money but never received their
steel buildings. Appellant claims this evidence should have been excluded based on
his rule 404(b) objection. See TEX. R. EVID. 404(b).
We review the trial court’s decision to admit or exclude evidence under an
abuse of discretion standard. Colone v. State, 573 S.W.3d 249, 264 (Tex. Crim. App.
2019) (citing Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018)). A trial
court abuses its discretion when its decision lies outside the zone of reasonable
disagreement. Beham, 559 S.W.3d at 478. Provided the trial court’s ruling falls
within the reasonable-disagreement zone, we may not substitute what we would have
done for what the trial court actually did. Gonzalez v. State, 544 S.W.3d 363, 370
(Tex. Crim. App. 2018). We uphold the trial court’s ruling if it is reasonably
supported by the evidence and is correct under any theory of law applicable to the
case. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016).
“Evidence of a crime, wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in
accordance with the character.” TEX. R. EVID. 404(b)(1). This evidence may be
admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, absence of mistake, or lack of accident. Id. at
404(b)(2). Intent may also be inferred from proof that the defendant engaged in other
similar, recent transactions. PENAL § 31.03(c)(1); see Johnson, 560 S.W.3d at 227.
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At trial, the State offered testimony from E.G. Roberts and Phillip Ward as
extraneous evidence of appellant’s intent to deceive pursuant to penal code section
31.03(c)(1). See PENAL §31.03(c)(1) (“evidence that the actor has previously
participated in recent transactions other than, but similar to, that which the
prosecution is based is admissible for the purpose of showing knowledge or intent”).
At a hearing outside the presence of the jury, the trial court considered the testimony
of the State’s witnesses, the testimony of appellant, and the arguments of counsel for
both parties. The court denied appellant’s objections and allowed the witnesses to
testify at trial.
Roberts, the person who introduced Fernandez to appellant, testified that he
was the pastor of the Way of Christ Christian Church. On April 26, 2016, Roberts
signed a purchase agreement with appellant for the purchase of a steel building for
the church. Roberts testified that appellant agreed to take the plans created by the
church’s architect and to create an actual structure from those plans. Appellant
agreed to provide the foundation, have the steel delivered, erect the building, and
install the doors and windows. The total price of the building was $168,820, and the
deposit requested by appellant was $42,205. Roberts paid the deposit in three
payments over a period of several months. Roberts paid $15,000 on April 26, the
day the contract was signed. On May 17, 2016, appellant call Roberts to tell him that
the price of steel was going up and the price of his building, and his deposit, would
be going up. Appellant asked Roberts to sign a change order reflecting this price
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increase and to make another partial payment of $7,505 toward the deposit amount.
The same day, appellant sent Roberts another change order to add a porte-cochere
to the building plans. Appellant told Roberts that this change order would increase
the price of the building by $9,693, and the amount of the deposit by $3,199.
In June or July of 2016, Roberts received blueprints from appellant and, as
agreed, paid the balance of the deposit amount. However, when Roberts and his
architect tried to contact appellant to discuss the blueprints, they were unable to
reach him. After repeated attempts to call appellant, they began trying to reach
White, the project coordinator assigned to their building project. He did not return
phone calls and did not respond to emails. Roberts never received his building, and
he never got his money back.
Pastor Phillip Ward testified that in September 2015, he contracted with
appellant for a steel building for his church, Destiny Worship Center. The total cost
of the building was $228,900, and the amount of the deposit was $57,225. The
church paid $10,000 the day the purchase agreement was signed. The church made
subsequent partial payments until the deposit had been paid in full. In early 2016,
Ward was ready to put his building into production. His bank attempted to contact
appellant about payment but could not reach him. Ward began trying to contact
appellant to release the building for production and delivery but he also could not
reach appellant. After numerous calls and emails went unanswered, Ward began
calling White. White did not answer his phone. Ward was finally able to contact
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appellant through Facebook. Appellant told Ward he had to leave the country
expeditiously. Ward testified that when he told appellant he needed the church’s
money back so the building project could be completed, appellant told him he could
not give it back. Ward never received the building, and he never got his money back.
Appellant concedes that the circumstances described by Roberts and Ward
were similar to the facts in this case. He argues, however, that each of these failures
was the result of his failing business—not evidence of his intent to deceive. He urges
that the evidence unfairly prejudiced him by causing the jury to confuse repetition
with intent.
The testimony of appellant’s other customers reveals a pattern of conduct on
his part of promising to perform work with no intention of completing it. See Taylor,
450 S.W.3d at 538–39; see also Lopez v. State, 316 S.W.3d 669, 678 (Tex. App.—
Eastland 2010, no pet.). Appellant negotiated the three contracts and pressured each
of his customers to pay the remaining balance due on their deposits as appellant was
closing down his business and leaving the country. Based on the testimony from
Roberts and Ward, a rational fact-finder could have found beyond a reasonable doubt
that appellant did not intend to facilitate the production and delivery of Fernandez’s
steel building at the time he accepted the deposit payments from Fernandez.
We conclude that appellant has not shown that the trial court erred in
admitting the other customers’ testimony because the trial court could have
reasonably concluded that the evidence was admissible to show appellant’s intent
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under both penal code section 31.03(c)(1) and rule 404(b). See PENAL § 31.03(c)(1);
TEX. R. EVID. 404(b); see also Lopez, 316 S.W.3d at 678–79. We overrule
appellant’s second issue.
C. Value of Property Taken
In his third issue, appellant challenges the sufficiency of the evidence to prove
the amount stolen was $30,000 or more but less than $150,000. He contends that
each check constituted a separate theft and they could not be aggregated because the
State failed to allege aggregation in the indictment. None of Fernandez’s three
checks was written for an amount of $30,000 or more. Therefore, appellant argues
that the State failed to prove a third-degree felony theft.
Generally, a charge of theft applies to a single occurrence. Cupit v. State, 122
S.W.3d 243, 246 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). Penal code
section 31.09 modifies this rule and permits separate thefts to be aggregated as one
offense when they are part of a single scheme or continuing course of conduct. See
PENAL § 31.09. However, the State must plead aggregation in the indictment.
Thomason v. State, 892 S.W.2d 8, 11 (Tex. Crim. App. 1994). An indictment that
fails to plead an aggregated theft alleges only a single occurrence under section
31.03. Id.
Because the indictment in this case does not mention the “single scheme or
continuing course of conduct” element, the indictment did not authorize a conviction
for aggregated theft. Id. Thus, a hypothetically correct jury charge would authorize
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a conviction for only one theft offense. To be sufficient, the State’s evidence had to
show a single theft of property on or between September 28, 2016 and December
10, 2016, that was valued at more than $30,000 but less than $150,000. The State
failed to meet this burden. Accordingly, we resolve appellant’s third issue in his
favor.
This resolution does not dictate acquittal, however. This Court may reform a
conviction to reflect a lesser-included offense if we find that the evidence was
insufficient to support conviction of the charged offense but sufficient to support the
lesser-included offense. See Walker v. State, 594 S.W.3d 330, 338 (Tex. Crim. App.
2020); Bowen v. State, 374 S.W.3d 427, 432 (Tex. Crim. App. 2012). In this case,
the State provided sufficient evidence to support a conviction for theft of property
valued at $2,500 or more but less than $30,000, a state jail felony. See PENAL §
31.03(e)(4)(A). Each of the checks Fernandez gave to appellant was for an amount
greater than $2,500; thus, evidence of any of these payments is sufficient. See Swann
v. State, No. 05-96-01852-CR, 2000 WL 141067, *3 (Tex. App.—Dallas Feb. 9,
2000, no pet.) (mem. op., not designated for publication) (reforming judgment to
reflect conviction for lesser-included offense of Class A misdemeanor theft where
State failed to allege aggregated theft in indictment but presented evidence sufficient
to prove single misdemeanor theft). Accordingly, we conclude that the judgment in
this case should be reformed to reflect that appellant was convicted of the lesser-
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included offense of theft of property valued at $2,500 or more but less than $30,000,
a state jail felony.
III. Conclusion
We modify the judgment to reflect a conviction for the lesser-included offense
of theft of property valued at $2,500 or more but less than $30,000, and we affirm
the conviction as set forth in the modified judgment. See TEX. R. APP. P. 43.2(b). We
remand this cause for a new trial on punishment only. See TEX. CODE CRIM. PROC.
ANN. art. 44.29(b); see also Swann, 2000 WL 141067, at *3.
/Bill Pedersen, III//
BILL PEDERSEN, III
JUSTICE
190307f.u05
Do Not Publish
TEX. R. APP. P. 47
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
KEVIN NEAL KISSIRE, Appellant On Appeal from the 380th Judicial
District Court, Collin County, Texas
No. 05-19-00307-CR V. Trial Court Cause No. 380-83135-
2017.
THE STATE OF TEXAS, Appellee Opinion delivered by Justice
Pedersen, III. Justices Myers and
Whitehill participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
Offense for which Defendant Convicted: Lesser-included offense of
theft of property valued at $2,500 or more but less than $30,000
Statute for Offense: 31.03(e)(4) Penal Code
Degree of Offense: State Jail Felony
As REFORMED, the conviction as set forth in the modified judgment is
AFFIRMED, and the cause is REMANDED for further proceedings pursuant to
Tex. Code Crim. Proc. Ann. art. 44.29(b).
Judgment entered this 31st day of August, 2020.
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