Martinez v. State

527 S.W.3d 310

Rodrigo MARTINEZ Jr., Appellant,

v.The STATE of Texas, Appellee.

NUMBER 13-15-00295-CR.

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed March 9, 2017

Rehearing Overruled May 23, 2017

Discretionary Review Refused November 22, 2017

George William "Jorge" Aristotelidis, 310 South St. Mary's Street, Suite 1830, San Antonio, TX 78205, Attorney of Record for the Appellant.

Ricardo P. Rodriguez, Hidalgo County District Attorney, Glenn W. Devino, Assistant District Attorney, Luis A. Gonzalez, Assistant District Attorney, 100 N. Closner, Room 303, Edinburg, TX 78539, Attorneys of Record for the Appellee.

Before Justices Contreras, Benavides, and Longoria

OPINION

Opinion by Justice Benavides

By eight issues, appellant Rodrigo Martinez, Jr. appeals his conviction for theft of property in an aggregate amount of $200,000 or more, a first-degree felony. See TEX. PENAL CODE ANN. §§ 31.03, 31.09 (Act of 2011, 82nd Leg., ch. 1234 (amended 2015) (current version at TEX. PENAL CODE ANN. § 31.03(e)(7) (West, Westlaw through 2015 R.S.)).¹ Martinez argues that: (1) the evidence was legally insufficient to support the conviction; (2) the evidence is legally insufficient to show that the charge was not barred by the statute of limitations; (3) the trial court committed jury charge error; (4) the trial court abused its discretion by allowing the State to put on his former client as a rebuttal witness; (5) the trial court abused its discretion by allowing the State to improperly impeach a witness; (6) the State improperly asked questions intended to inflame the minds of the jury; (7) the trial court's comments regarding an adverse witness erased the impartiality of the court; and (8) there was cumulative error. Additionally, the State raises a cross-appeal regarding the restitution amount by stating the oral pronouncement by the trial court is not properly reflected in the judgment. We affirm as modified.

I. BACKGROUND

Martinez was indicted by the grand jury on June 6, 2012 and the indictment was filed with the district court on that day. See id. The underlying offense came from the theft of funds from Elena Cantu (Cantu). Money was alleged to have been taken from April 2004 up until the last theft which was alleged to have occurred on June 7, 2007.

Cantu had purchased ten acres of land in Edinburg, which she had been renting out to farmers. Cantu retired and decided she wanted to develop the land for residential purposes. Cantu's nephew, Richard Longoria, recommended she meet with Martinez because Martinez had experience in real estate development.

In April 2004, Cantu and Martinez executed a business contract for the development of the ten acres of land, which they named Coyote Run. That contract listed the price of development as $150,000 and listed Martinez as the broker and developer.² Cantu made an initial payment of $30,000 to Martinez. In March 2005, Cantu secured a loan with First National Bank (FNB) in Mission in the amount of $400,000. Cantu testified she wanted a more hands-off approach to this development and trusted Martinez to handle it due to his experience. At the time the first loan with FNB was secured, Cantu and Martinez prepared the land for apartments to be built. Martinez hired Eduardo Martinez, Sr. (Eduardo) of AD & EE Construction (AD & EE) as the general contractor on the project.

Shortly after Cantu secured the loan, Martinez and Eduardo drafted up a draw request from the loan for $51,364.00. Cantu and Martinez signed the draw request, which was approved by the bank. Martinez deposited the check into his law office interest on lawyer's trust account (IOLTA), which is designated for client funds. Three months after the draw request, Jorge Perez (Perez), a civil engineer with Perez Engineering, was hired to begin working with the City of Edinburg (the City) to secure the proper authorization and permits required to build.

Draw requests continued from Martinez and Eduardo through 2005 and 2006 for substantial sums of money. Although Eduardo and Perez testified that getting proper approval from the City took a lengthy amount of time, there was little work being done on Cantu's property. Cantu testified she asked when work would be starting and Martinez always assured her there were buyers waiting for the land. Cantu stated that Martinez had told her she could expect to sell the land for $1.388 million dollars and such assurances are what convinced her to keep withdrawing money from the loan.

During this same time period, AD & EE was also working on other projects, including Martinez's personal home. Money continued to be withdrawn out of Cantu's loan account and Martinez continued to write checks to AD & EE. In the meantime, Martinez's home was completed. Cantu testified that she was not aware that AD & EE was constructing Martinez's home at the same time they were supposed to be working on her development. Additionally, although Martinez had also taken out a loan for the construction of his house with FNB, he was depositing his loan funds into his IOLTA account, commingling them with Cantu's funds as well as other client monies.

In March 2007, Cantu and Martinez returned to FNB. Cantu's loan was about to mature and more money was needed to complete her project. Ruben Plata, the president of the FNB–Mission branch, was able to get an additional amount approved on Cantu's loan. Cantu initially requested $525,000, but Plata was only able to obtain approval of $515,000 from the bank. Cantu and Martinez executed an amended agreement, which changed the land from lots for apartments to lots for residences. The next two draw requests following the increase in the loan amount were denied by FNB. At least four draw requests were submitted by Martinez in early 2007. Many of the draw requests repeated items from prior requests.

Cantu testified that she continued to approve draw requests and withdraw money because she wanted the subdivision completed. Only minimal work was ever completed on her land.

FNB sent multiple letters of acceleration until Cantu was not able to provide the monies required. She eventually lost the land to foreclosure to the bank, with still minimal improvements to it. Martinez never returned money to Cantu or developed the property.

The State called Aurora Martinez (Aurora) of AD & EE as a witness. Aurora stated that Martinez was never an owner or director of their company. But the State impeached Aurora with a mechanic's lien that listed Martinez "doing business as" or dba AD & EE. Aurora still claimed that Martinez had nothing to do with their business and no kickbacks were exchanged. Aurora claimed AD & EE was only paid for work performed, even though evidence showed minimal work towards the completion of Coyote Run.

Eduardo also testified as a State's witness and stated he was hired to be the general contractor and that he normally requests clients' money before starting work. Eduardo testified he stopped business dealings with Coyote Run around 2007 and was paid approximately $300,000 for the work on Coyote Run. Eduardo testified that many of the draw requests were necessary in order to put deposits or lock in prices on materials, but those materials were never used or returned to Cantu. Eduardo testified that they never used Cantu's materials on other jobs and none of Cantu's money was used to build Martinez's home. Eduardo further still believes he was owed money for the project, even though it was not completed.

Guadalupe Botello of Botello Mortar and Grading, a subcontractor, testified that he submitted a bid for completion of the subdivision and was awarded the job. Botello installed the sewer line for Coyote Run and submitted an invoice for $43,000. However, Botello was never paid and stopped his work. Botello testified he was only paid slightly over $9,000 for cleaning a canal, which was separate work from his bid. Botello testified he stopped working on Coyote Run due to the lack of payment, and Eduardo avoided him after he tried to collect his money.

The State also called Plata from FNB. Plata testified about how a loan process would work regarding real estate. Plata assigned loans to his various loan officers, who were supposed to follow the progress of the real estate developments. Plata also testified that the bank released funds based on the draw requests, and that any use of the money for something other than what was listed on the draw request would constitute fraud. Plata spoke about IOLTA accounts and interpreted the bank statements submitted as evidence. He stated that Martinez's IOLTA account had insufficient funds in multiple months and that this should never happen because it was clients' money in the account. On cross-examination, Plata stated that Martinez's home loan was for $525,000, the exact same amount Cantu was told to request when the loan was increased.

Perez, a civil engineer on the project, stated he was not aware that Botello was not paid for his work. Perez also billed $36,000 and was paid "maybe half" of the amount. Perez sent a letter of termination to Eduardo and received a letter from Martinez, identifying himself as Eduardo's attorney. Perez drafted a new contract to stay on the job, but never heard anything back from Eduardo or Martinez.

Martinez called multiple witnesses who testified to his reputation in the community. Martinez also testified in his own defense. Martinez stated he approached Eduardo about helping develop Coyote Run because Martinez had never developed a residential subdivision before. Martinez stated he was never trying to make a profit off of Cantu. Martinez testified he relied on the bank loan officers and Eduardo to make sure the project was moving ahead as scheduled. Martinez admitted to taking Cantu's loan money from the draw requests and depositing it into his IOLTA account. Martinez stated that he deposited everything into his IOLTA account: loan proceeds, settlements, client payments, his personal monies....