Paredez v. State

JOSE RODRIGO PAREDEZ, SR., APPELLANT v. THE STATE OF TEXAS, APPELLEE

No. 07-18-00412-CR

Court of Appeals Seventh District of Texas at Amarillo

July 16, 2020

On Appeal from the 286th District Court Hockley County, Texas

Trial Court No. 16-07-8807; Honorable Pat Phelan, Presiding

MEMORANDUM OPINION

Before QUINN, C.J., and PIRTLE and DOSS, JJ.

Following a plea of not guilty, Appellant, Jose Rodrigo Paredez, Sr., was convicted by a jury of hindering a secured creditor in the amount of $2,500 or more, but less than $30,000.¹ Punishment was assessed by the jury at two years confinement in a state jail facility, suspended in favor of five years of community supervision. Based on a stipulationby the parties, the trial court ordered $6,974.19 in restitution. By two issues, Appellant (1) challenges the legal sufficiency of the evidence to show he concealed the property and (2) asserts the trial court committed fundamental error that resulted in egregious harm by including a statutory mandatory presumption in the guilt-innocence charge to the jury. We affirm.

BACKGROUND

Appellant signed three promissory notes with the Hockley County School Employees Credit Union. Two of those notes were combined with security agreements protecting the credit union's interest in two vehicles purchased by Appellant. The security agreements authorized repossession of the vehicles if Appellant became delinquent on the notes and did not remedy the delinquency after receiving the required notices. One of the notes signed in October 2013 was for the purchase of a 2003 Chevrolet Silverado truck.

In May 2015, Appellant became delinquent on his payments on the note secured by the Chevrolet truck.² Per standard procedure, the credit union collections manager sent Appellant a reminder, a past-due notice, and a certified letter requesting that he make his account current.³ When Appellant failed to do so, the manager, on behalf of the credit union, turned to the legal system to repossess the collateral.

In June 2015, a repossession order was issued to a "Mr. Bush" of Bush's Automotive. According to the manager's testimony, Mr. Bush reported that he was unable to locate the truck, and he never actually repossessed it. The manager further testified that she contacted Appellant five to six times regarding the location of the truck. Neither he nor his wife ever responded to her queries.⁴ Months later, in early October, the truck was delivered to Bush's Automotive stripped of its motor, transmission, and door handles. The exhaust had been placed in bed of the truck. The record is silent on who delivered the truck to Bush's Automotive.

Before the truck was delivered to Bush's Automotive, the credit union had made numerous attempts to obtain the return of the collateral. In July 2015, it filed a civil suit against Appellant together with an affidavit for sequestration. The same day suit was filed, the trial court issued a sequestration order on which the district clerk then issued a Writ of Sequestration. A sheriff's deputy served the documents on Appellant in August 2015, but Appellant failed to return the truck. The following month, the trial court granted the credit union's Motion to Compel Turnover, which Appellant also disregarded. In December 2015, the trial court issued a contempt order for Appellant's failure to comply with the turnover order. As a result of that action, Appellant was directed to pay his note or serve five days in jail. Finally, in February 2016, the trial court entered a default judgment against Appellant for $9,787.44 in the civil suit filed by the credit union. Thetotal sum represented $6,974.19 for the principal on the note and the remainder for attorney's fees and costs.

According to the manager, despite all the notices and curative measures attempted, Appellant failed to remedy the delinquency. The manager made numerous attempts to discover the whereabouts of the truck by asking Appellant and his wife; however, they refused to disclose the location. Mr. Bush was unable to repossess the truck because initially, he could not find it and, later, once he found it, he could not recover it because it was "blocked in."⁵ According to the manager, Appellant was delinquent on the note for the truck in the amount of $2,544.45, and the resale value of the truck after it was delivered to Bush's Automotive was maybe as salvage.

Eventually, criminal charges were brought against Appellant for hindering a secured creditor. The offense of hindering a secured creditor may be committed by numerous methods; however, the only manner and means alleged by the State in this case was "conceal[ing] the property by hiding the motor vehicle, without the effective consent" of the credit union and "with intent to hinder enforcement" of the security agreement entered into with the credit union. Following a jury trial, Appellant was found guilty and sentenced to two years confinement. His sentence was suspended in favor of five years community supervision. The trial court also ordered restitution in the amount of $6,974.19, representing the balance of the principal, interest, attorney's fees, and costs due and owing on the note secured by Appellant's promissory obligation.

ISSUE ONE—SUFFICIENCY OF THE EVIDENCE

Appellant contends the evidence is insufficient to support his conviction because the State failed to prove that he concealed the truck by "hiding" it, the only manner and means alleged in the indictment. The only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense the State is required to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). In our review of the sufficiency of the evidence, we consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, any rational juror could have found the essential elements of the crime beyond a reasonable doubt. Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).

In doing so, we give deference to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). Each fact need not point directly and independently to the appellant's guilt, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Id.

Furthermore, in conducting our analysis, we compare the elements of the offense as defined by a hypothetically correct jury charge to the evidence adduced at trial. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). In our review, we must evaluate all of theevidence in the record, both direct and circumstantial and whether properly or improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When the record supports conflicting inferences, we presume the fact finder resolved the conflicts in favor of the prosecution and defer to that determination. Jackson, 443 U.S. at 326.

APPLICABLE LAW

A person who has signed a security agreement creating a security interest in property commits the offense of hindering a secured creditor if "with intent to hinder enforcement of that interest or lien, he destroys, removes, conceals, encumbers, or otherwise harms or reduces the value of the property." TEX. PENAL CODE ANN. § 32.33(b) (West 2016). "Conceal" is not defined by the statute nor elsewhere in the Texas Penal Code. This court has held that "conceal" means "to prevent disclosure or recognition of" or "to place out of sight." See Lujan v. State, No. 07-09-0036-CR, 2009 Tex. App. LEXIS 7121, at *6 (Tex. App.—Amarillo Sept. 9, 2009, no pet.) (mem. op., not designated for publication). Because "conceal" is not specifically defined, the fact finder may freely read it to have any meaning which is acceptable in common parlance. See Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995). Turning to a common definition, "hide" means to put out of sight, secrete. See MERRIAM-WEBSTER, http://www.merriam-webster.com/dictionary/hide (last visited July 8, 2020).

ANALYSIS

In the indictment, the State only alleged one manner and means of committing the offense—concealing by "hiding." Appellant contends that by limiting itself to hiding as the only manner and means of concealment, the State failed to meet its burden of proof. Hechallenges the State's evidence on the issue of concealment as "skeletal, fragmentary, and self-contradictory."

The only witnesses to testify at trial on the issue of concealment were the credit union collections manager and a former Hockley County deputy who investigated the case before criminal charges were filed. Appellant did not testify, and no witnesses were presented on his behalf.

The collections manager testified that she began working on the delinquent note in May 2015. Efforts to locate and repossess the truck began in June; however, the truck was not recovered until October, six months after Appellant had begun receiving notices about the delinquent note. The manager further testified that between June and October, "[w]e couldn't locate it." Although she testified the truck had been devalued by being stripped, Appellant was not charged with hindering a secured creditor by destroying the collateral or reducing its value. Instead, he was charged only with concealing the truck by "hiding" it.

During the manager's cross-examination, she was asked why the credit union had engaged an attorney in July to initiate sequestration proceedings against Appellant. She answered that all efforts to have ...