Daugherty, Tonya Jean
2013 Tex. Crim. App. LEXIS 1888
| Tex. Crim. App. | 2013Background
- Daugherty entered a construction contract with Gary Bailey on April 16, 2008 to finish out a newly rented office space for $48,251 with landlord to pay $32,040.
- On execution day, Daugherty wrote a $1,657 check; Bailey deposited and it cleared.
- Work was to begin after permits; permits were delayed about a month and a half, with Bailey beginning later.
- Daugherty’s bank balance was $1,870.59 on May 31, 2008, leaving her unable to cover roughly $15,000 owed; she did not inform Bailey.
- Bailey completed the work around July 3, 2008 and obtained a certificate of occupancy July 10, 2008; remaining balance became due.
- At a July 14, 2008 meeting, Daugherty gave Bailey two checks including $15,871 for her portion, knowing she had insufficient funds; Bailey later learned the checks were dishonored.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether immaterial variance supports legal sufficiency in theft-by-deception | Daugherty argues immaterial variance applies; evidence shows deception predated and continued through payment. | State’s variance from indictment is immaterial; still insufficient to prove deception. | Variance immaterial; evidence sufficient to prove deception. |
Key Cases Cited
- Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) (two-part materiality test for variance between indictment and proof)
- Cada v. State, 334 S.W.3d 766 (Tex. Crim. App. 2011) (immaterial variance where not a statutory element)
- Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2011) (three variance categories; third immaterial)
- Cortez v. State, 582 S.W.2d 119 (Tex. Crim. App. 1979) (deception timing; acts before completion can affect judgment)
- Gibson v. State, 623 S.W.2d 324 (Tex. Crim. App. 1981) (deception must affect judgment before completion)
- Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) (hypothetically correct jury charge standard)
- Curry v. State, 30 S.W.3d 394 (Tex. Crim. App. 2000) (interpretation of indictment and elements)
- Geick v. State, 349 S.W.3d 542 (Tex. Crim. App. 2011) (limitations on proving consent-related elements)