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Door knocker convicted and sentenced to year in jail for Texas Deceptive Business Practices  
January 20, 2023
Door knocker convicted and sentenced to year in jail for Texas Deceptive Business Practices
            There’s no sugar coating this one.  The court decision lays out the facts as they were presented to the judge and jury and, legal technicalities aside, this is the kind of conduct that stains the alarm industry and other door to door sales operations.  While there is nothing wrong with door to door sales, something that’s been around forever, there is no legitimate reason to engage in deception and down-right wrongful conduct, law or no law in place.
            The fact is that there are federal and state laws addressing deceptive business practices, some of which are described below in the court’s decision.  Suffice it to say that no alarm company should encourage or permit such conduct and no sales person should engage in this kind of offensive conduct.
            Here’s an excerpt from the court decision:

Dunham v. State
            Does the Deceptive Business Practices law, Texas Penal Code § 32.42(b), require jury unanimity on the same specific act of deception to convict? No. Jury unanimity is not required on the specific manner and means of the offense because the manner and means is not an "essential element" of the offense. Furthermore, we also find that the evidence was sufficient to support Appellant's conviction. 
Appellant, Mark Wakefield Dunham, was a door-to-door salesman for Capital Connect. On or about June 15, 2016, Appellant rang the doorbell of Eloise Moody, an 81-year-old lady recently widowed and diagnosed with cancer. When Moody answered, Appellant pointed at the "Central Security Group" alarm sign in Moody's front yard and said: "I'm here to update your security." Appellant also said, referring to the Central Security Group sign, "I'll put a light on it, make it visible from the street" which he explained would be helpful to "update the neighborhood." Appellant was not wearing a uniform or name tag and did not say what company he worked for. Moody, therefore, understood Appellant to be employed by her alarm company (Central) and that he was intending to place a light on the sign in her front yard.
Appellant then stepped into Moody's doorway prompting her to open the door further. As he did this, Appellant said: "Would you like me to pull off my shoes. I don't know what your panel looks like." Still believing that Appellant was employed by Central, Moody told him the panel was "in the back of the house through the laundry, through the kitchen." Moody testified that she would never have let Appellant enter her home if she had known he worked for a different company.
Appellant walked deep into the house, peeked at the panel in the laundry room and then asked, "Can we sit here and talk?" so he could use the kitchen tabletop to write on. With Moody sitting at the table, Appellant presented various new features to Moody and told her that the features and their installation would be free. According to Moody,  Appellant kept saying, "This is free. It won't cost you anything." Moody was still under the engineered impression that Appellant worked for her original alarm company. She would later find out that these "free" new features came with a contract that was far more expensive than her existing one.
Appellant then called Central to have Moody cancel her contract, and he told her that if they gave her any "flak" she should tell them that the Central hardware was "being taken out," and hand the phone to him and tell them that he was her son. Although Moody later told Appellant that she could not do anything without her daughter's approval, Appellant continued with the sale. According to Moody, during this call, a Capital Connect technician summoned by Appellant had already arrived and was in the process of removing the Central system and rewiring the house for Capital's hardware.
Appellant also telephoned Capital Connect and had Moody speak with a representative. A recording of the call was admitted into evidence. Moody said that she was currently paying Central. When the representative asked her if she was having a new alarm system installed because the prior company was going out of business, had been taken over, or was no longer able to perform monitoring services, Moody answered, "No, I'm just changing it up." The representative then asked if Moody understood that by accepting the offer, she would be changing alarm companies, and she responded, "That I will what" and "I'm not understanding you." The representative said that Capital Connect is a separate company from Central, and Moody said "Yes." Later during the call, Moody stated she was having difficulty hearing. 
When Appellant presented her with the paperwork, she realized he didn't work for Central, but she signed anyway and entered into a five-year agreement with Capital with a higher monthly cost-roughly double her service fees through Central. She also initialed next to the following statement: "I understand that Capital Connect has not bought, taken over or is in any way partnered with my current alarm monitoring company." She testified that she did not realize how much the new system was going to cost. A few days later, Moody canceled the new contract with Capital.
Appellant was charged with deceptive business practices pursuant to Penal Code § 32.42(b). Specifically, the information alleged that Appellant intentionally, knowingly, and recklessly:
(1) represented that a commodity or service was of a particular style, grade, or model, when it was another, by giving the impression to Eloise Moody that an alarm system was a Central Security Group system when it was actually a Capital Connect system;
(2) represented the price of the service falsely or in a way tending to mislead by telling Moody that a new alarm installation would be free when it would actually require her to sign a new contract at additional cost; and/or
(3) made a materially false or misleading statement in connection with the purchase or sale of a service by telling Moody that a new alarm installation would be free when such installation actually would require her to sign a new contract at additional cost. 
See infra, *8, *8 n. 18.
In its entirety, Section 32.42(b) reads:
(b) A person commits an offense if in the course of business he intentionally, knowingly, recklessly, or with criminal negligence commits one or more of the following deceptive business practices:
(1) using, selling, or possessing for use or sale false weight or measure, or any other device for falsely determining or recording any quality or quantity;
(2) selling less than the represented quantity of a property or service;
(3) taking more than the represented quantity of a property or service when as a buyer the actor furnishes the weight or measure;
(4) selling an adulterated or mislabeled commodity;
(5) passing off property or service as that of another;
(6) representing that a commodity is original or new if it is deteriorated, altered, rebuilt, reconditioned, reclaimed, used, or secondhand;
(7) representing that a commodity or service is of a particular style, grade, or model if it is of another;
(8) advertising property or service with intent:
(A) not to sell it as advertised, or
(B) not to supply reasonably expectable public demand, unless the advertising adequately discloses a time or quantity limit;
(9) representing the price of property or service falsely or in a way tending to mislead;
(10) making a materially false or misleading statement of fact concerning the reason for, existence of, or amount of a price or price reduction;
(11) conducting a deceptive sales contest; or
(12) making a materially false or misleading statement:
(A) in an advertisement for the purchase or sale of property or service; or
(B) otherwise in connection with the purchase or sale of property or service.
Tex. Penal Code § 32.42(b) (emphasis reflects the three modes of deceptive business practice Appellant is alleged to have committed).

He pleaded not guilty and was tried before a jury who found him guilty of the offense. The trial court sentenced Appellant to one year in the county jail, and the court of appeals affirmed. 
We granted review to determine whether the evidence was sufficient to support Appellant's conviction and whether the jury charge erroneously authorized a non-unanimous verdict. Based on our construction of Texas Penal Code § 32.42(b), and our review of the record, viewing the evidence in the light most favorable to the verdict, we agree with the court of appeals on both points: (1) there was sufficient evidence to support the conviction; and (2) jury unanimity was not required on the specific manner and means of the offense because it was not an "essential element" of the offense.

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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301