July 13, 2018

Texas Courts of Appeals

Dunham v. State

No. 14-17-00098-CR                         7/10/18


Must the jury unanimously agree on the specific underlying act to convict a defendant of deceptive business practices under Penal Code §32.42?


No. Deceptive business practices is a “circumstances of conduct” offense. The jury must unanimously agree on the circumstances—that the defendant committed the act while in the course of business. The underlying acts listed in §32.42(b) are different manner and means of committing a single offense, and the jury is not required to unanimously agree which of the acts the defendant committed. Read opinion.


Read this opinion if you like footnotes about gerunds! The court relies on recent Court of Criminal Appeals precedent in arriving at its holding that the jury need not be unanimous as to the precise act by which the defendant committed the offense of deceptive trade practices. While most Texas prosecutors may never prosecute this crime, the case may prove useful when considering unanimity questions about other offenses in the Penal Code. This case might also inspire prosecutors to use the deceptive trade practices section to fight elder fraud.