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Texas alarm door knocker sentenced to one year and fined $4000 July 23, 2018

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE

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Texas alarm door knocker sentenced to one year and fined $4000
July 23, 2018
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Texas alarm door knocker sentenced to one year and fined $4000 
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            A Texas alarm door knocker has been sentenced to one year in jail and fined $4000 for deceptive business practices.  The door knocker appealed on factual and technical grounds and the appellate court affirmed the trial court.  I’ve quoted from the decision below and it’s a familiar tune in the alarm industry.  While I know that door knockers [and I do not mean to use that description in a derogatory way] can be quite effective stimulating sales, using deceptive business practices, such as those described below, is unacceptable.  
            In my opinion, it’s too bad that the company’s sale manager and even company president and owner was prosecuted also. They are the real culprits, probably training the door knocker and letting him loose, not to mention reaping the re  wards of his illicit sales tactics and conduct. 
            The following are quoted portions from the appellate court decision.
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            The complainant was about eighty years old at the time of the offense. She had a home security alarm system monitored by Central Security Group. There was a sign in the front of her yard with the name of the company on it.
            Appellant was a door-to-door sales representative for Capital Connect, a different home security alarm monitoring company. On the day of the offense, appellant rang the complainant’s doorbell. When the complainant answered, appellant pointed to the sign in the yard and said, “I'm here to update your security.” He said that he would put a light on her sign and make it more visible from the street. He did not say what company he worked for. He was not wearing a uniform, nametag, or anything to identify what company he worked for.
Believing that appellant worked for Central, the complainant invited appellant into her home.             Appellant told her that installation of new features, such as wireless monitoring, would be “free.” Ultimately, the complainant signed a five-year alarm monitoring agreement with Capital at a higher monthly cost than her previous service with Central.
The complainant testified that, before she signed the new contract, she “kept telling him that I can't do anything without my daughter’s approval” because the daughter “tends to all of my business.”             The complainant testified that she realized appellant did not work for Central when he “presented the papers” to her. One of the documents the complainant signed was an “alarm upgrade agreement.” The complainant initialed next to the statement: “I understand that Capital Connect has not bought, taken over or is in any way partnered with my current alarm monitoring company.”
            *3 The complainant also spoke on the phone with a representative from Capital while appellant was in her home, and a recording of the call was admitted as an exhibit at trial. When the representative asked the complainant who she was paying to monitor her alarm system, the complainant said, “Central.” The representative asked whether the complainant 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. The complainant responded, “No, I'm just changing it up.” Later, they had the following exchange:
Representative: Do you understand that by accepting this offer you will be changing alarm companies?
Complainant: That I will what?
Representative: You will be changing alarm companies.
Complainant: I'm not understanding you.
Representative: Capital Connect is a separate company from Central and so I'm just verifying—
Complainant: Yes.
Representative: —that you understand that. Ok. Great. And you understand that moving forward that you will no longer be with Central and that your monitoring and billing will be performed by Monotronix?
Complainant: Right.2
A few days later, the complainant canceled the new contract with Capital.
The State also introduced evidence regarding two additional instances when appellant had misled customers about who he worked for. The first witness testified that he was eighty years old at the time of trial. In July 2016, the witness was returning home at about 8:00 p.m. when appellant walked up to the witness in the driveway. Appellant had multiple “ID tags” or lanyards around his neck. The tags had the names of several companies, including Honeywell, Stanley, and ADT. Appellant told the witness, “I'd like to talk to you about your alarm system, your burglar alarm. I see you have Stanley.” For about thirty minutes while they were conversing, the witness thought appellant worked for Stanley—the witness’s then-current alarm monitoring company. The witness testified that appellant “probably misrepresented the fact that he was a Stanley operative.” The witness testified that by the time he signed up for the new alarm system, he knew he was dealing with Capital.
            The second witness testified that in June 2016, appellant came to the witness’s door. The witness testified that appellant “said that he wanted to talk to me about upgrading my security system, that he had seen the sign outside saying that I had ADT Security.” Because appellant referred to the sign in the witness’s yard, the witness “assumed [appellant] was working for ADT.” While they were inside the house, the witness told his wife that appellant was “with ADT Security.” Appellant did not correct the witness at that time. Appellant was inside the witness’s house for about thirty minutes before the witness realized that appellant did not work for ADT. The witness testified that the “first clue” that appellant did not work for ADT was the fact that the paperwork had “Capital Connect” written on it. The witness testified that he understood by the time he signed the contract that he was getting a Capital system.

            The State, however, contends that the statute criminalizes conduct both leading up to and during the completion of a business transaction. Thus, the State contends that a “deceptive business practice can be committed in all aspects of the transaction and is not excused merely by a signature on a contract stating appropriate terms.”

            We agree with the State. The relevant inquiry does not focus on what the complainant knew at the time she signed the contract; instead, it focuses on what appellant did—what he represented—during the course of business. See Tex. Penal Code § 32.42. The representation must be made “in the course of business,” which includes “selling ... serviceor property.” Id. § 34.42(a)(2), (b).3 The statute does not criminalize conduct of a defendant only when the defendant is successful in perpetrating a fraud. See id. § 34.42. Rather, the statute criminalizes the act of “representing”—an act that can occur before a completed transaction. See Representation, Black’s Law Dictionary 1327 (8th ed. 2004) (“A presentation of fact—either by words or by conduct—made to induce someone to act, esp. to enter into a contract; esp., the manifestation to another that a fact, including a state of mind, exists.”); Represent, Webster’s Third New International Dictionary 1926 (1993) (including the definition “to describe as having a specified character or quality”)

            In this case, a rational juror could have understood the statutory word “representing” to include appellant’s conduct and statement immediately after he initiated contact with the elderly complainant at her front door—pointing to the Central sign and stating “I'm here to update your security.” A rational inference from this statement and conduct is that appellant was describing a Central alarm system, although he was not. See, e.g.Balderas, 517 S.W.3d at 766 (must defer to jury’s rational inferences and resolution of conflicting inferences supported by the record). Indeed, the complainant testified that appellant did not refer to a different company’s alarm system until appellant “presented the papers” to her after gaining entry to her home and discussing alarm system features with her. Under the evidence in this case, a rational juror could have found that appellant represented that a commodity or service was of a particular style, grade, or model when it was of another. See Tex. Penal Code § 32.42(b)(7)cf. Agbogun v. State, 756 S.W.2d 1, 2–3 (Tex. App.—Houston [1st Dist.] 1988, pet. ref'd) (sufficient evidence under Section 32.42(b)(7) when a pharmacist put a name-brand label on a bottle containing a generic drug).

            The State presented evidence regarding two uncharged extraneous offenses, which showed that appellant employed the same or similar tactic on other people. He pointed to their alarm system signs, for companies other than Capital, and misled the customers into believing that he worked for those companies. In one instance, he wore multiple lanyards of different companies, and in the other instance, he failed to correct the customer’s statement that appellant worked for a company other than Capital. In both instances, the customers did not learn the true style, grade, or model of the alarm systems that appellant was peddling until nearly thirty minutes into the conversations.
            Only the Westlaw citation is currently available: 2018 WL 3354258  Court of Appeals of Texas, Houston (14th Dist.). Marc Wakefield DUNHAM, Appellant v. The STATE of Texas, Appellee NO. 14-17-00098-CR Opinion filed July 10, 2018
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Note: I just want to remind you that if you are getting two duplicate emails from me daily it's because I am using two bulk email service companies. The two companies seem to reach different addresses. Feel free to delete one email. If you want to unsubscribe you should do it from both emails. You can always read our emails on our website at https://www.kirschenbaumesq.com/page/alarm-articles 
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Note: I just want to remind you that if you are getting two duplicate emails from me daily it's because I am using two bulk email service companies. The two companies seem to reach different addresses. Feel free to delete one email. If you want to unsubscribe you should do it from both emails. You can always read our emails on our website at https://www.kirschenbaumesq.com/page/alarm-articles
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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
ken@kirschenbaumesq.com
516 747 6700
www.KirschenbaumEsq.com