Chief Justice Steve McKeithen
Judge and jury plunged overboard when they treated a dispute over Hurricane Rita repairs as a crime, Ninth District appeals judges decided on Nov. 12.
Chief Justice Steve McKeithen and Justice Charles Kreger acquitted Marcus Phares of felony theft, a crime Jefferson County jurors believed he committed.
McKeithen wrote that "the state failed to prove theft, but instead merely proved the existence of a contractual dispute."
Justice Hollis Horton dissented, finding enough evidence for jurors to conclude that Phares started repairs with no intention of finishing.
Horton would have affirmed Criminal Court Judge John Stevens, who sentenced Phares to two years in jail and ordered $9,100 in restitution to Kylie and Daniel Walker.
Phares apparently served no time, for Stevens suspended sentence and prescribed five years of community supervision.
In 2005, Rita hit the Walker home in Nederland. The storm twisted the vinyl siding.
Phares, a neighbor, bid $12,000 to replace the siding. He and the Walkers signed a contract that did not specify a price.
They gave him a check for $7,100, and for a few days he and two other workers pulled siding and piled it in the back yard.
New insulation arrived, but old insulation remained on outer walls.
New siding didn't arrive.
On the 12th day of the contract, Phares asked Kylie Walker for another $2,000. She gave him a check.
A month later, the Walkers sent Phares a 10-day demand letter. He didn't respond, and they hired another contractor.
Daniel Walker told Phares to stay off the property.
Daniel and Kylie Walker asked Nederland detective James West to file a theft charge.
West interviewed Phares and told him proper documentation could result in referral to civil court rather than criminal court.
Phares didn't deliver documents, and West tendered the case to prosecutors.
They charged him with felony theft between $1,500 and $20,000.
At trial, Phares testified that he kept the job file in the Walker garage and it came up missing after they started having issues.
He said he didn't try to reconstruct the file, and he estimated he spent $4,000 to $4,200 on labor and $3,000 to $3,500 on materials.
Phares said he conducted all business on a cash basis and didn't order siding because stores weren't accepting orders.
He said he didn't have problems until the Walkers began going through a divorce.
Marvin Bailey Jr., his uncle, testified that he saw Phares and others removing siding and installing insulation.
Bailey said the work stopped due to problems between Phares and the Walkers.
Carpenter Ronda Ard testified that she removed siding, installed insulation, replaced a J channel and installed fixtures for lights.
She said she was told the wrong siding came in and it was on reorder.
She said Phares paid her and other workers.
Jurors convicted Phares, Stevens sentenced him, and the Ninth District set him free.
"Texas penal code provides that a person commits theft if he unlawfully appropriates property with intent to deprive the owner of property," McKeithen wrote.
He wrote that the code required proof that when Phares induced the Walkers to pay him, he intended to take their money without performing the work.
"On this record, there is no evidence from which such a deceptive intent can be inferred," he wrote.
Horton, however, found evidence of deceptive intent.
"In my opinion, reasonable jurors could infer from these facts that, from the moment he entered the contract, Phares never intended to purchase the materials required to complete the contract," he wrote.
He wrote that McKeithen and Kreger removed from the jury the right to weigh evidence in determining Phares's intent at the outset of the contractual relationship.
David Barlow represented Phares. According to the Ninth District website, Phares also represented himself.
Rodney Conerly represented the state