Dunham, Marc Wakefield ( 2023 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0831-18
MARC WAKEFIELD DUNHAM, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS
HARRIS COUNTY
RICHARDSON, J., delivered the opinion of the Court in which KELLER, P.J.,
HERVEY, NEWELL, KEEL, WALKER, SLAUGHTER, and MCCLURE, JJ., joined.
YEARY, J., filed a dissenting opinion.
OPINION
Does the Deceptive Business Practices law, Texas Penal Code § 32.42(b), require
jury unanimity on the same specific act of deception to convict? No. Jury unanimity is not
required on the specific manner and means of the offense because the manner and means
is not an “essential element” of the offense. Furthermore, we also find that the evidence
was sufficient to support Appellant’s conviction.
1
Background
Appellant, Mark Wakefield Dunham, was a door-to-door salesman for Capital
Connect. On or about June 15, 2016, Appellant rang the doorbell of Eloise Moody, an 81-
year-old lady recently widowed and diagnosed with cancer. When Moody answered,
Appellant pointed at the “Central Security Group” alarm sign in Moody’s front yard and
said: “I’m here to update your security.” Appellant also said, referring to the Central
Security Group sign, “I’ll put a light on it, make it visible from the street” which he
explained would be helpful to “update the neighborhood.” Appellant was not wearing a
uniform or name tag and did not say what company he worked for. Moody, therefore,
understood Appellant to be employed by her alarm company (Central) and that he was
intending to place a light on the sign in her front yard.
Appellant then stepped into Moody’s doorway prompting her to open the door
further. As he did this, Appellant said: “Would you like me to pull off my shoes. I don’t
know what your panel looks like.” Still believing that Appellant was employed by Central,
Moody told him the panel was “in the back of the house through the laundry, through the
kitchen.” Moody testified that she would never have let Appellant enter her home if she
had known he worked for a different company.
Appellant walked deep into the house, peeked at the panel in the laundry room and
then asked, “Can we sit here and talk?” so he could use the kitchen tabletop to write on.
With Moody sitting at the table, Appellant presented various new features to Moody and
told her that the features and their installation would be free. According to Moody,
2
Appellant kept saying, “This is free. It won’t cost you anything.” Moody was still under
the engineered impression that Appellant worked for her original alarm company. She
would later find out that these “free” new features came with a contract that was far more
expensive than her existing one.
Appellant then called Central to have Moody cancel her contract, and he told her
that if they gave her any “flak” she should tell them that the Central hardware was “being
taken out,” and hand the phone to him and tell them that he was her son. Although Moody
later told Appellant that she could not do anything without her daughter’s approval,
Appellant continued with the sale. According to Moody, during this call, a Capital Connect
technician summoned by Appellant had already arrived and was in the process of removing
the Central system and rewiring the house for Capital’s hardware.
Appellant also telephoned Capital Connect and had Moody speak with a
representative. A recording of the call was admitted into evidence. Moody said that she
was currently paying Central. When the representative asked her if she was having a new
alarm system installed because the prior company was going out of business, had been
taken over, or was no longer able to perform monitoring services, Moody answered, “No,
I’m just changing it up.” The representative then asked if Moody understood that by
accepting the offer, she would be changing alarm companies, and she responded, “That I
will what” and “I’m not understanding you.” The representative said that Capital Connect
is a separate company from Central, and Moody said “Yes.” Later during the call, Moody
stated she was having difficulty hearing.
3
When Appellant presented her with the paperwork, she realized he didn’t work for
Central, but she signed anyway and entered into a five-year agreement with Capital with a
higher monthly cost—roughly double her service fees through Central. She also initialed
next to the following statement: “I understand that Capital Connect has not bought, taken
over or is in any way partnered with my current alarm monitoring company.” She testified
that she did not realize how much the new system was going to cost. A few days later,
Moody canceled the new contract with Capital.
Appellant was charged with deceptive business practices pursuant to Penal Code §
32.42(b). Specifically, the information alleged that Appellant intentionally, knowingly, and
recklessly:
(1) represented that a commodity or service was of a particular style, grade,
or model, when it was another, by giving the impression to Eloise Moody
that an alarm system was a Central Security Group system when it was
actually a Capital Connect system;
(2) represented the price of the service falsely or in a way tending to mislead
by telling Moody that a new alarm installation would be free when it
would actually require her to sign a new contract at additional cost; and/or
(3) made a materially false or misleading statement in connection with the
purchase or sale of a service by telling Moody that a new alarm
installation would be free when such installation actually would require
her to sign a new contract at additional cost. 1
He pleaded not guilty and was tried before a jury who found him guilty of the
offense. The trial court sentenced Appellant to one year in the county jail, and the court of
appeals affirmed.
1
See infra, *8, *8 n. 18.
4
We granted review to determine whether the evidence was sufficient to support
Appellant’s conviction and whether the jury charge erroneously authorized a non-
unanimous verdict. Based on our construction of Texas Penal Code § 32.42(b), and our
review of the record, viewing the evidence in the light most favorable to the verdict, we
agree with the court of appeals on both points: (1) there was sufficient evidence to support
the conviction; and (2) jury unanimity was not required on the specific manner and means
of the offense because it was not an “essential element” of the offense.
I. Sufficiency of the Evidence
Appellant argues that the court of appeals erred in holding that the evidence is
legally sufficient to sustain his conviction under the three predicate acts charged in the
information pursuant to subsections 32.42(b)(7), (9), and (12). 2 Appellant argues that he
never made an “affirmative misrepresentation,” and that he eventually disclosed his true
employment status by the time of the contract signing. 3 Thus, according to Appellant, the
court of appeals was erroneous in limiting the temporal scope of the statutory term,
“represent,” to include anything less than the entirety of the transaction. 4 We agree with
the court of appeals that under Section 32.42(b) representations can happen in the time
2
Appellant’s Br. at 9.
3
Id. at 11–14.
4
Id. at 14–17.
5
leading up to a contract signing. 5 We further agree with the court of appeals that the
evidence here is legally sufficient to sustain Appellant’s conviction. 6
Standard of Review for Sufficiency of the Evidence
We conduct a two-step process to determine whether the court of appeals properly
analyzed the sufficiency of the evidence. First, we must determine “the essential elements
of the crime” for which the State must provide sufficient evidence to support a conviction. 7
To identify the “essential elements of the crime” we examine “the hypothetically correct
jury charge for the case.” 8 A hypothetically correct jury charge does four things: (1)
accurately sets out the law, (2) is authorized by the indictment, (3) does not unnecessarily
increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability,
and (4) adequately describes the particular offense for which the defendant was tried.” 9
This list is “not necessarily exhaustive.” 10 The law as authorized by the indictment includes
5
Dunham v. State, 554 S.W.3d 222, 229 (Tex. App.—Houston [14th Dist.] 2018).
6
Id. at 230.
7
Clinton v. State, 354 S.W.3d 795, 799 (Tex. Crim. App. 2011).
8
Id.; Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
9
Ramos v. State, 407 S.W.3d 265, 269 (Tex. Crim. App. 2013); Malik, 953 S.W.2d at
240.
10
Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000).
6
“the statutory elements of the offense . . . as modified by the charging instrument.” 11 We
conduct a de novo review of statutory interpretation. 12
Second, we perform a sufficiency review by examining all of the evidence in the
record 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. 13
“[The jury’s] verdict must stand unless it is found to be irrational or unsupported.” 14 “The
jury is the sole judge of the credibility and weight to be attached to the testimony of
witnesses. 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.” 15 “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.” 16 “Direct evidence and circumstantial evidence are treated equally” and
“circumstantial evidence alone can be sufficient to establish guilt.” 17
11
Curry, 30 S.W.3d at 404.
12
Williams v. State, 253 S.W.3d 673, 677 (Tex. Crim. App. 2008).
13
Geick v. State, 349 S.W.3d 542, 545 (Tex. Crim. App. 2011).
14
Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991).
15
Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).
16
Id.17
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
7
Essential Elements of the Crime
We begin with determining the essential elements of the offense. The State alleged
by information the following:
[I]n Harris County, Texas, MARC WAKEFIELD DUNHAM, hereafter
styled the Defendant, heretofore on or about JUNE 15, 2016, did then and
there unlawfully, in the course of business intentionally, knowingly and
recklessly represent that a commodity or service is of a particular style, grade,
or model if it was another, namely: by giving the impression to Eloise
Moody, hereinafter the Complainant, that an alarm system was a Central
Security Group alarm system when it was actually a Capital Connect alarm
system, and/or intentionally, knowingly and recklessly represent the price of
property or service falsely or in a way tending to mislead, namely by telling
the Complainant that a new alarm system installation would be free when
such installation actually would require her to sign a new contract at
additional cost, and/or intentionally, knowingly, and recklessly make a
materially false or misleading statement in connection with the purchase or
sale of property or service, namely, by telling the Complainant that a new
alarm system installation would be free when such installation actually
would require her to sign a new contract at additional cost. 18
18
Texas Penal Code Section 32.42(b) provides, in relevant part:
A person commits an offense if in the course of business he intentionally,
knowingly, recklessly, or with criminal negligence commits one or more of the
following deceptive business practices:
***
(7) representing that a commodity or service is of a particular style, grade,
or model if it is another;
***
(9) representing the price of property or service falsely or in a way tending
to mislead;
***
(12) making a materially false or misleading statement:
***
(B) otherwise in connection with the purchase or sale of property
or service.
The definition of “business” includes “trade and commerce and advertising, selling, and buying
service or property.” TEX. PENAL CODE § 32.42(a)(2).
8
Under this information pursuant to Section 32.42(b), the State was obligated to
prove the following:
1. Appellant
2. On or about June 15, 2016
3. Intentionally, knowingly, or recklessly
4. In the course of business
5. that Appellant committed one or more of the following deceptive business
practices:
a. [pursuant to 32.42(b)(7)] represent that a commodity or service is of
a particular style, grade, or model if it was another, namely:
by giving the impression to Eloise Moody, hereinafter the
Complainant, that an alarm system was a Central Security Group
alarm system when it was actually a Capital Connect alarm system,
or
b. [pursuant to 32.42(b)(9)] represent the price of property or service
falsely or in a way tending to mislead, namely:
by telling the Complainant that a new alarm system installation would
be free when such installation actually would require her to sign a new
contract at additional cost,
or
c. [pursuant to 32.42(b)(12)] make a materially false or misleading
statement in connection with the purchase or sale of property or
service, namely:
by telling the Complainant that a new alarm system installation would
be free when such installation actually would require her to sign a new
contract at additional cost.
(emphasis added). Appellant does not contest identity, date, nor that the alleged conduct
was in the course of business. On appeal, Appellant contests only the sufficiency of
whether, at a minimum, he recklessly represented or carried out any of the three deceptive
business practices alleged. Under the plain language of the statute, only “one or more of
9
the following deceptive business practices” was required to be proven. 19 Because the State
offered sufficient evidence under the first allegation under Section 32.42(b)(7), we need
not examine the latter two.
Analysis of the Plain Meaning of the Statutory Term “Represent”
The statute here provides that a person commits the offense of deceptive business
practices if, in the course of business, he intentionally, knowingly, recklessly, or with
criminal negligence represents that a commodity or service is of a particular style, grade,
or model when it is of another. 20 Because the Penal Code does not define the word
“represents” for the deceptive business practices offense, we must determine what that
word means under the statute.
We construe a statute according to its plain meaning and consider extratextual
factors if the statutory language is ambiguous or if the plain meaning would lead to an
absurd result. 21 To determine the plain meaning, we apply the canons of construction,
which include a list of presumptions regarding legislative intent. 22 It is presumed that the
statute complies with the Texas and federal constitutions; the entire statute is intended to
19
Clinton v. State, 354 S.W.3d 795, 800 (Tex. Crim. App. 2011).
20
TEX. PENAL CODE § 32.42(b)(7).
21
Clinton, 354 S.W.3d at 800; Boykin v. State, 818 S.W.2d 782, 785-86 (Tex. Crim. App.
1991).
22
Clinton, 354 S.W.3d at 800 (citing Rushing v. State, 353 S.W.3d 863, 865 (Tex. Crim.
App. 2011); TEX. GOV’T CODE § 311.021.
10
be effective; a just and reasonable result is intended; a result feasible of execution is
intended; and public interest is favored over private interest. 23 When analyzing the
sufficiency of the evidence, undefined statutory terms “are to be understood as ordinary
usage allows, and jurors may thus freely read statutory language to have any meaning
which is acceptable in common parlance.” 24 If, however, the statutory terms have a
technical meaning, we will construe them consistent with the technical meaning. 25
When determining the fair, objective meaning of an undefined statutory term, our
Court may consult standard dictionaries. 26 The verb “represent” has been defined several
ways. For example, Webster’s Third New International Dictionary includes as a definition
of represent “to describe as having a specified character or quality.” 27 Black’s Law
Dictionary defines “representation” as “a presentation of fact—either by words or by
conduct—made to induce someone to act, esp. to enter into a contract; esp., the
manifestation to another that a fact, including a state of mind, exists.” 28 In its common
usage, the word presumes that the action can occur before a completed transaction like a
contract. Applying this definition to the word “represent” as used in the deceptive business
23
TEX. GOV’T CODE § 311.021.
24
Clinton, 354 S.W.3d at 800; Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App.
1992).
25
See Medford v. State, 13 S.W.3d 769, 771–72 (Tex. Crim. App. 2000).
26
Ramos v. State, 303 S.W.3d 302, 306 (Tex. Crim. App. 2009).
27
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1926 (1993).
28
BLACK’S LAW DICTIONARY 1327 (8th ed. 2004).
11
practices statute, we agree with the court of appeals and conclude that the word includes,
and the statute criminalizes, the defendant’s conduct leading up to and during the
completion of a business transaction.
The definition proposed by the court of appeals follows the pertinent canons of
construction, and its conclusion that the relevant inquiry here focuses on Appellant’s
actions and representations during the course of business is sound. 29 As the court of appeals
notes, “[t]he statute does not criminalize conduct of the defendant only when the defendant
is successful in perpetrating a fraud. Rather, the statute criminalizes the act of
“representing”—an act that can occur before a completed transaction.” 30 Presuming the
Legislature intended for the entire statute to be effective and for a just and reasonable result,
a plain reading of the statute suggests that consummation of the transaction is not
required. 31
Sufficiency under Texas Penal Code Section 32.42(b)(7)
We find that a rational juror could have concluded beyond a reasonable doubt that
Appellant completed a deceptive business practice while in the course of business.
Appellant argues that he did not make any express statements that were false, and that, at
worst, he only omitted material information. However, the jury could have rationally
29
See TEX. GOV’T CODE § 311.021.
30
Dunham, 554 S.W.3d at 229.
31
See TEX. GOV’T CODE § 311.021.
12
concluded from the evidence that Appellant’s words and actions in their totality were either
recklessly deceptive or even intentionally engineered to deceive.
The jury heard Appellant begin by stating “I’m here to update your security” while
pointing at Moody’s front yard sign for Central Security Group. 32 The jury also heard
Appellant’s following statements: “I’ll put a light on it, make it visible from the street” in
order to “update the neighborhood.” 33 To add to the obfuscation, Appellant was not
wearing a uniform nor any badges identifying the company he was there to represent. From
these facts alone, a jury could have found Appellant was being reckless in his conduct—
the sum totality of his words and actions—up to this point.
But the inculpatory evidence heard by the jury did not stop there. Moody testified
that Appellant managed to gain entry into the house and sit down at Moody’s kitchen table.
Moody testified that only sometime after the technician had already started uninstalling or
rewiring Moody’s alarm system did she realize that Appellant did not work for Central
Security Group. 34 The evidence also showed that the earliest Moody could have known of
Appellant’s true employment status was either when she was given the contract to sign, or
when she was on the phone with Capital Connect.
32
(3 RR 24). We note that Appellant chose to use the word “update” which, given the
context, would suggest an enhancement or a feature addon to a preexisting device or system.
33
(3 RR 24–25) (emphasis added).
34
The technician working with Appellant managed to arrive at the house and begin the
uninstallation process roughly 15–20 minutes after Appellant entered Moody’s home. (3 RR 38–
39).
13
The State, moreover, presented testimony from two other people living nearby,
Andrew Davis and James Zike, who also had similar encounters with Appellant. Based on
these encounters, a rational jury could have found that Moody’s misimpression was not the
result of an accidental misunderstanding, but the result of a calculated scheme to confuse
and deceive. Zike testified that Appellant utilized similar tactics to gain the sale. Upon
ringing his doorbell, Zike testified that Appellant offered to upgrade Zike’s security system
with no charge to Zike. “All I’d have to do was agree to put a solar light on my sign so
people could see it at night.” 35 Under the impression that Appellant worked for ADT—the
company that Zike was then contracted with—Zike allowed Appellant to enter his home
and introduced Appellant to his wife as an agent working for ADT Security. According to
Zike, Appellant never said or did anything to correct the misimpression: “He did not. He
did not correct me at all.” 36 Zike testified that roughly thirty minutes passed before
Appellant revealed that he did not work for ADT Security.
In Davis’s encounter, Davis testified that Appellant approached him wearing
multiple identification tags with multiple companies on them. They included Honeywell,
Stanley, and ADT. This led Davis to believe Appellant was a representative of those
companies, especially Stanley—the alarm company Davis was then contracted with to
monitor his Honeywell home security equipment. According to Davis, Appellant said the
following about the Stanley signs in his front and side yards: “We’ll replace them with
35
(4 RR 66).
36
(4 RR 68).
14
lighted signs, and get a better advertisement for the company.” 37 Davis then asked him for
his business card, to which Appellant responded: “Well, I’ll get it to you when we talk
about your system . . . . Why don’t we go inside and sit down where you’d be comfortable.”
Davis testified that he did not receive the Appellant’s Capital Connect business card until
somewhere between an hour to an hour-and-half later. Until that point, Davis believed
Appellant worked for Stanley. Davis testified that he would never have allowed Appellant
into the house if he had known Appellant was not a Stanley operative.
Based on the totality of the evidence, a rational jury could have found Appellant
was recklessly representing that he worked for Moody’s then-current alarm company while
in the course of business. Furthermore, it was undisputed that Appellant continued the
deception of who he worked for until moments before Moody signed the contract. In doing
so, the commodity and service he was advertising (the Capitol Connect alarm system
equipment and monitoring service) were not of the particular style, grade, or model
(Central Security Group alarm system and monitoring service) that Appellant represented
it as. Viewing the evidence in a favorable light, we find it sufficient to support Appellant’s
conviction under Texas Penal Code Section 32.42(b)(7).
II. Jury Unanimity
37
(4 RR 15–16) (emphasis added). Appellant’s choice of words, again, tend towards
vagueness ripe with the potential to mislead the listener. Given the repeated behavior, the jury
could have inferred that they were intentionally engineered thus.
15
Appellant reasons that the jury could have reached a non-unanimous verdict because
the jury charge did not require the jurors to unanimously agree which of the three deceptive
business acts Appellant committed. The trial court denied Appellant’s request for a
unanimity instruction on the three manner and means, and the court of appeals affirmed.
Appellant argues that this was erroneous because the Deceptive Business Practices statute
is a “nature of the conduct” offense. Thus, per Appellant, the jury must unanimously agree
that a defendant committed one or more of the three specific acts. We disagree.
Jury unanimity is not required for the specific manners and means for this offense.
The basis of our finding is found in the phrase “one or more of the following.” The statute
explicitly focuses on whether a person committed “one or more of the following deceptive
business practices.” 38 The language of the statute, on its face, does not focus on which of
the provided definitions of “deceptive business practices” found in subsection (1)–(12) is
triggered so long as at least one them is. 39 Thus, the specific manners and means
constituting a “deceptive business practice” does not constitute an “essential element” of
the offense. 40 The phrase would be rendered meaningless if Section 32.42(b) were to
38
TEX. PENAL CODE § 32.42(b).
39
TEX. GOV’T CODE § 311.021.
40 O’Brien, 544 S.W.3d at 384. Appellant points out that the Legislature assigned different
degrees of punishment for Section 32.42(b)’s subsections. Some are Class A misdemeanors.
Others are Class C misdemeanors and none are felonies. Those different degrees of punishment
suggest that the subsections of differing punishment severities are not “morally and conceptually
equivalent.” Jefferson, 189 S.W.3d at 313. Nevertheless, the three subsections in Appellant’s
charging instrument—b(7), b(9), and b(12)—are all Class A misdemeanors. While the prosecution
would have to elect manners and means if the degrees of punishment varied, that is not the case
16
require jury unanimity in the specific manners and means. 41 Therefore, we treat the three
alleged acts as alternative manner and means where jury unanimity is not required.
We conclude that jury unanimity is not required on the manners and means as listed
in subsections (1)–(12). We find that the Legislature, based on the statutory language,
intended to punish the act of deceptive business practices in general—not establish separate
units of prosecution for each subsection within the same overall act. The trial court and the
court of appeals, hence, did not err in reaching this conclusion.
Conclusion
We hold that (1) the evidence was sufficient to support Appellant’s conviction on
the first ground alleged in the information under Section 32.47(b)(7); and (2) jury
unanimity was not required as to the manner and means. For these reasons, we affirm the
court of appeals and the trial court.
Delivered: January 11, 2023
Publish
here.
41
See id. at 388 (“By including the phrase ‘one or more of the following’ in the statute, the
Legislature demonstrated that it was not focused upon the commission of specific predicate
offenses as it was upon organized crime [Section 71.02].”).
17