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Click here for the full text of this decision FACTS:The complainant, Gordon Pattison, owns properties in Somerville, Burton, Carmine and Bluebonnet. Pattison wanted someone to perform repair or remodeling work on the properties in exchange for free rent. One of Pattison’s tenants recommended appellant for the job. On Dec. 3, 2002, appellant and Pattison entered into a written contract, agreeing inter alia that appellant would lease the Somerville property for $400 per month, but would not be obligated to pay rent for the first five months. Instead, appellant would repair the porch and install a steel roof on the Somerville Property by Feb. 15, 2003, and repair the windows, front door, and the hardwood floors “as needed” by April 15, 2003. The contract required Pattison to pay for the materials necessary for the roof repairs. Accordingly, Pattison gave appellant a check for $200 on Dec. 3, 2002, and after appellant produced a list of roofing materials needed and their cost, Pattison gave appellant a second check for $1,400. Appellant, however, did not move into the Somerville property. Before the Feb. 15, 2003 deadline to repair the Somerville roof, appellant and Pattison negotiated a series of agreements for appellant to perform work on other properties. These agreements were independent of the December 2002 contract. First, appellant installed a wall, closet, bathtub, sink and toilet in Pattison’s Burton property. Pattison originally agreed to pay appellant $1,000 for this project, but because appellant did not provide the fixtures, Pattison reduced the payment to $850. Although Pattison considered the job incomplete because appellant did not install a closet shelf, and because a ventilation pipe bent the soffit on the outside of the house, Pattison paid appellant for the work. Appellant and Pattison then verbally agreed appellant would hang doors and lay a linoleum floor at Pattison’s Carmine property. Appellant and an assistant performed the work, and appellant was paid for this project as well. Pattison next agreed to pay appellant $300 to remove a tree leaning on a house owned by Pattison’s former son-in-law. The record does not indicate whether appellant performed or was paid for this work. Appellant did not repair the roof of the Somerville Property by Feb. 15, 2003, as agreed, and Pattison asked appellant to return the $1,600.00. Appellant refused, and Pattison filed charges on or about February 24, 2003. Detective Michael Davis of the Brenham Police Department was assigned to the case. Davis took Pattison’s statement, and photographed the Somerville property. After Pattison pressed charges, appellant and Pattison agreed appellant would renovate the porch on the Somerville property for an additional payment of $600. Appellant performed the work, and Pattison paid him. This was the only project Pattison considered complete. Appellant and Pattison then orally modified their December, 2002 written contract regarding the Somerville property, agreeing that appellant would not refund the $1,600.00 for roofing materials and would not repair the roof on the Somerville property, but instead would perform work at Pattison’s home in Bluebonnet. Specifically, they agreed appellant would erect a building, install a kitchen sink and an outdoor outlet, change a light fixture, reroute a ditch, remove a four-inch layer of dirt or concrete, and provide and pour concrete for a driveway. Appellant and an assistant worked on the project for six hours a day for the first two days, but then worked only two hours a day. On some days, rain prevented appellant from working on the Bluebonnet project. When all of the work for the Bluebonnet driveway was complete except for pouring the concrete, appellant insisted that Pattison pay for the concrete. When Pattison refused, appellant abandoned the job. Pattison bought the concrete for approximately $4580 and paid a contractor approximately $350 to correct appellant’s installation of the concrete forms and pour the “flat surface” of concrete. Pattison considered pouring the concrete to be the major part of the Bluebonnet project. Before trial, appellant offered to repay Pattison $1,000 immediately and to pay the remaining $600.00 with a post-dated check. Unwilling to accept a post-dated check, Pattison refused. Pattison never told the investigating detective the contract had been modified, or that he continued to employ appellant on other projects after charges were filed. The case was tried on Dec. 15, 2004, and appellant was convicted of theft of property worth more than $1,500, but less than $20,000. Theft of property of this value is a state jail felony, and appellant received a 180-day probated sentence, and was placed on community supervision for two years. Appellant was also ordered to pay court costs and to pay Pattison $1,600 in restitution. HOLDING:The court reverses the conviction, dismisses the indictment, and renders a judgment of acquittal. Despite the language of the indictment, the state’s evidence failed to demonstrate deception, but merely showed appellant failed to perform the work. The State also failed to demonstrate criminal intent. the State’s characterization of the evidence is not supported by the record, in part because the State mistakenly focuses on the superceded December 2002 contract. the State presented no evidence that appellant delayed the Bluebonnet project or made any excuse for failing to perform. The State’s evidence instead establishes that appellant and his assistant spent a minimum of twenty-eight hours working on the project, and completed the driveway but for pouring the concrete. There is no evidence appellant did not intend to do the work; rather, he actually performed much of what the modified agreement objectively required him to do. The evidence presented shows only a civil contract dispute, and not the necessary criminal intent to support appellant’s conviction. The evidence is therefore legally insufficient to sustain appellant’s conviction. OPINION:Guzman, J.; Fowler, Edelman and Guzman, JJ.

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