PD-0831-18 12/05/2018
1. “The evidence is legally insufficient to sustain Appellant’s conviction for deceptive business practice where Appellant did not make any affirmative misrepresentation, the State’s theory of liability was based on an omission rather than an act, and the complainant accurately understood the commercial terms when the transaction occurred.”
2. “Whether deceptive business practice is a ‘nature-of-conduct’ or ‘circumstance-of-conduct’ offense and whether the jury must agree unanimously that the defendant committed the same specific act of deception to convict him.”
Dunham was a door-to-door security system salesman for Capital Connect. He spoke to 80-year-old Eloise Moody at her home, pointed to the Central Security sign in her yard, and said, “I’m here to update your security.” He did not tell her that he really worked for the competitor. Believing that Dunham worked for Central, Moody invited him into her home. He told he could upgrade her system with new features and that installation would be free. When Dunham presented the contract for her to sign, Moody realized for the first time that she would be changing her security company. She repeatedly told Dunham that she could not do anything without her daughter’s approval but ultimately signed the contract anyway. It came with a higher monthly cost than Central. Her daughter cancelled the contract and contacted police. Dunham was charged with misdemeanor deceptive business practices, Tex. Penal Code § 32.42. At trial, elderly extraneous offense witnesses testified that they, too, had initially believed that Dunham worked for their existing security company. One man had introduced Dunham to his wife as being “with ADT Security,” and Dunham had not corrected him.
The trial court told the jurors in the jury charge that they did not have to be unanimous about whether Dunham
· represented the alarm system as a different “style, grade, or model” from what it really was by representing it was a Central security system instead of a Capital one;
· represented the price falsely or misleadingly by telling Moody installation would be free when it would actually require her to sign a new contract at additional cost; or
· made materially false or misleading statements in connection with the sale by telling her installation would be free when it would actually require her to sign a new contract at additional cost.
Dunham objected to the instruction. In closing argument, the prosecutor reiterated that the jurors did not have to agree on how Dunham committed the offense. The jury returned a general guilty verdict.
On appeal, Dunham argued the evidence was insufficient because by the time Moody signed the contract, she knew he was not with Central. The court of appeals held that Penal Code § 34.42 does not require that the defendant successfully defraud the victim; it criminalizes the act of “representing” something falsely “in the course of business,” which can occur before the sale is complete, and in Dunham’s case occurred when he pointed to the sign and said he was there to update her security. Dunham also complained that the jury charge should have required unanimity about the statutory alternatives for committing the offense. Section § 34.42 criminalizes committing, in the course of business, “one or more of the following deceptive business practices . . . ” The court of appeals found—by comparison to the organized criminal activity statute discussed in O’Brien v. State, 544 S.W.3d 376 (Tex. Crim. App. 2018)—that deceptive business practices is a circumstances-of-the-offense statute. Because the focus of the offense is on being in the course of business, not committing a particular act, the jury need not be unanimous about which deceptive practice the defendant committed.
Dunham argues that he committed no crime and was just being an effective salesman. He contends the court of appeals erroneously criminalized conduct leading up the sale and that he never affirmatively told Moody that he worked for Central. At most, his conduct was an omission, which cannot be criminalized under Penal Code § 6.01(c) since no law created a duty to act. The contract accurately stated both that installation was free and the amount she would pay per month for alarm monitoring. He also challenges the sufficiency of the evidence showing he acted recklessly or with greater intent. And he contends that a Central system is not a different “style, grade, or model” from a Capital system. Finally, Dunham argues the jury charge should have required unanimity because, under § 34.42’s statutory framework, each listed deceptive practice consists of a separate offense, not a different manner and means.
