Adan Olvera, Jr. v. the State of Texas

Affirmed and Memorandum Opinion filed August 22, 2024

In The

Fourteenth Court of Appeals

NO. 14-22-00947-CR

ADAN OLVERA, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 443rd District Court
Ellis County, Texas
Trial Court Cause No. 46111CR

MEMORANDUM OPINION

A jury found appellant Adan Olvera, Jr. guilty of theft and the trial court
assessed punishment at 650 days in state jail and a $500.00 fine and ordered
appellant to pay $7,500 in restitution. See Tex. Penal Code Ann. § 31.03(a).
Appellant contends that the evidence is legally insufficient to support his
conviction because the State did not prove that there was deception at the time of
the exchange of property. For the reasons stated below, we affirm the trial court’s
judgment. 1

Background
Tommy and Tamatha Fontaine hired appellant to build a shed/garage on
their property. The Fontaines communicated with appellant for two months
regularly regarding the building plans and agreed that construction would begin on
Saturday, May 12, 2018. The Fontaines paid appellant $7,500 by check on
Thursday, May 10, 2018. However, there was either an issue with appellant being
able to cash the check without a driver’s license and/or a three day hold by the
bank on cashing the check. Appellant told the Fontaines the next day, Friday, May
11, 2018, that he needed cash instead so he could immediately begin purchasing
supplies and begin work the next day. Tommy cashed the check at the bank at 1:12
p.m. and gave appellant the $7,500 in cash that same day.
Appellant did not show up to begin work the next day, Saturday, May 12,
2018, and he did not contact the Fontaines about any delay. After the Fontaines
contacted him, appellant stated that he would begin work the next day. Appellant
did not arrive Sunday, either. Tommy testified that he called appellant on Sunday
and appellant stated that “he was trying to get things together.” On Tuesday, May
15, appellant texted Tommy that he was waiting to hear from a subcontractor but
would begin on other parts of the job. He did not. On May 17, Tamatha testified
that she asked appellant for the money back, and appellant responded that he could

1
The Supreme Court of Texas ordered the Court of Appeals for the Tenth District of
Texas to transfer this appeal (No. 10-22-00430-CR) to this court. Misc. Docket No. 22-9115
(Tex. Dec. 20, 2022); see Tex. Gov't Code Ann. §§ 73.001, .002. Because of the transfer, we
decide the case in accordance with the precedent of the transferor court under principles of stare
decisis if our decision otherwise would have been inconsistent with the transferor court's
precedent. See Tex. R. App. 41.3.

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not return it since he had already spent it on workers. Tamatha told appellant that
she planned to file a police report. On May 18, Tommy texted appellant for a status
update. Appellant stated that he would be there the next day. This was the last time
appellant was in contact with the Fontaines. On May 19, appellant did not respond
to Tommy’s text messages inquiring when he would arrive, nor to Tommy’s later
text message to call him. On May 21 at 7:57 a.m., Tommy texted appellant to
either show up or return the money. Later that day, the Fontaines filed a police
report. Appellant never began work, provided any materials, or returned the money
to the Fontaines.

Standard of Review

In evaluating a challenge to the sufficiency of the evidence supporting a
criminal conviction, we view the evidence in the light most favorable to the
verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue
on appeal is not whether we, as a court, believe the State’s evidence or believe that
appellant’s evidence outweighs the State’s evidence. Wicker v. State, 667 S.W.2d
137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is
irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819
S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury “is the sole judge of the
credibility of the witnesses and of the strength of the evidence.” Fuentes v. State,
991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or
disbelieve any portion of the witnesses’ testimony. Sharp v. State, 707 S.W.2d 611,
614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume
the jury resolved conflicts in favor of the prevailing party. Turro v. State, 867
S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt, we must
affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

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A person commits theft if the person intentionally or knowingly unlawfully
appropriates property with the intent to deprive the owner of the property. Tex.
Penal Code. Ann. § 31.03(a). Appropriation of property is unlawful if it is without
the owner’s effective consent. Tex. Penal Code. Ann. § 31.03(b). Consent is not
effective if it is induced by deception or coercion. Tex. Penal Code. Ann.
§ 31.01(3).

The Penal Code defines the term “deception” as meaning:

(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;
(B) failing to correct a false impression of law or fact that is
likely to affect the judgment of another in the transaction, that the
actor previously created or confirmed by words or conduct, and that
the actor does not now believe to be true;
(C) preventing another from acquiring information likely to
affect his judgment in the transaction;
(D) selling or otherwise transferring or encumbering property
without disclosing a lien, security interest, adverse claim, or other
legal impediment to the enjoyment of the property, whether the lien,
security interest, claim, or impediment is or is not valid, or is or is not
a matter of official record; or
(E) 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.
Tex. Penal Code Ann. § 31.01(1).

Only when, at the time that money is exchanged pursuant to the contract, the
accused either intends not to, or at least knows he will not, perform his part of the
bargain may he be held criminally liable for theft. Taylor v. State, 450 S.W.3d 528,
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536 (Tex. Crim. App. 2014).

Analysis

Appellant asserts that the trial evidence is legally insufficient to support his
conviction for theft. He argues there is insufficient evidence to show that he did not
intend to perform the service at the time he took the money.

However, evidence at trial showed that appellant misled the Fontaines.
Appellant insisted on being paid in cash for the express reason of him needing the
money immediately to purchase materials so he could begin the next day. A jury
could infer that this promise was to induce a cash payment from the Fontaines. A
jury could also infer that appellant sought a cash payment over a check payment so
that appellant would not risk the Fontaines cancelling the payment with the bank
when appellant did not perform as promised. Further, a jury could infer that it was
unreasonable to expect to coordinate next-day delivery with a supply company and
obtain all the materials necessary for the concrete job after being paid at 1:12 p.m.
the day before work was to commence.

The jury could also find that the subsequent lack of performance and
communication, as well as appellant’s unwillingness to pay back the Fontaines
once they requested the money be returned, are also evidence of deception. A
defendant’s intentions can be determined from his words, acts, and conduct
occurring before, during, or after the commission of the offense. Wirth v. State,
361 S.W.3d 691, 697 (Tex. Crim. App. 2012); Elizondo v. State, 487 S.W.3d 185,
201-202 (Tex. Crim. App. 2016). Appellant did not go back to the Fontaines’
property, purchase materials, conduct work, or return the money to the Fontaines.
Rather, when prompted by the Fontaines, he continually delayed and said he would
be there the next day before ceasing communication altogether.

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While appellant provided alternative explanations, the jury determined from
circumstantial evidence that appellant made the promise of performance to
deceptively acquire the Fontaines’ $7,500 in cash with no intention to perform on
that promise. This was not a determination so outrageous that no rational finder of
fact could agree. As such, the evidence is not legally insufficient.

Conclusion

Our review of the record reveals legally sufficient evidence to support the
jury’s verdict of guilt. We affirm the judgment of the trial court.

/s/
Frances Bourliot
Justice

Panel consists of Justices Bourliot, Zimmerer, and Spain.
Do Not Publish — Tex. R. App. P. 47.2(b)

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