*1 non-expert evidence demon- detailed the Dr. bag hot when
strating that it. He referenced placed
Medina also testimony regarding
Harts’ statements
Dr. nurse and tried to discredit Medina’s testimony.
IV. Conclusion the tri-
Assuming, deciding, without in admitting Diggdon’s
al erred Dr. court
testimony, we find that error was such probably did not cause the
harmless and improper judgment. an
rendition of Tex. R.App. 44.1(a). affirm Accordingly, P. we judgment.
the trial court’s CHRISTENSEN, Appellant,
Edward Texas, Appellee. STATE
No. 01-04-00713-CR. Texas, Appeals
Court (1st Dist.).
Houston
July 2007.
Discretionary Review Refused
Dec. 2007. *2 Secrest, Jr., $1,000. sus- supervision, and a fine of We George McCall Bennett & Secrest, Maselli, L.L.P., Jani J. Robin tain first issue that asserts Houston, TX, Springer, Appel- “Burt” to estab- the evidence is insufficient *3 lant. judg- his reverse and render guilt, lish and guilty not of the offense.3 ment that he is Jr., Rosenthal, A. District At-
Charles Alan torney-Harris County, Curry, Assis- Houston, TX, Attorney,
tant District Background Appellee. Harris Appellant deputy with the was TAFT, County
Panel of Office. In March consists Justices Sheriffs JENNINGS, president and ALCALA. Harris became (the
County
Organization
Organ-
Deputies’
OPINION ON REHEARING
ization),
not-for-profit
a union that
is a
organization composed
approximately
of
ALCALA,
ELSA
Justice.
3,000
The
was
deputies.
Organization
16, 2006, panel
this
On November
of
benefit
provide
formed to
services for the
appeal
reversed on
the conviction of
Court
members,
its
such as
improvement
of
Christensen,
appellant, Edward
and re-
benefits,
improvement
of
employment
manded the cause to the trial court for
conditions,
injured
working
of
assistance to
proceedings.
further
The State filed mo-
of
deputies, and assistance
the families
rehearing
tions for
and en banc reconsid-
killed
line of
deputies injured or
in the
Court,
At
request
eration.
of this
an
duty.
Organization maintained
of-
The
timely
response
filed a
president,
fice
four
vice-
run
officers—
grant
State’s motion. We
the State’s mo-
secretary, and
president,
treasurer —and
tion for
our
rehearing,
previous
withdraw
eight
Organization
board members. The
opinion,
opinion
and substitute this
in its
expenses
raised
for its
and activities
funds
stead.1
from
it received from its members
fees
Appellant appeals from a conviction for
through
deductions.
payroll
jail felony
property
state
theft of
valued
The
also
funds
Organization
raised
$1,500
$20,000.
See Tex. Pen.
between
tele-
through telemarketing. One of the
(Vernon
31.03(e)(4)
§
Supp.
Code Ann.
by the
2006).
Organization
marketers used
Appellant
guilty.2
not
The
pleaded
Kowalsky
working
Kowalsky.
began
Ron
theft,
jury found appellant guilty of
January
in
1998 un-
for the
the trial court
punishment
assessed
at con-
negotiat-
jail
agreement
der a
that was
years
finement for
in a state
facili-
written
two
Tabor,
Organiza-
ty, suspended
years
community
four
of
ed
then the
William
Having granted rehearing,
engaging
organized
ac-
1.
we
offense
criminal
overrule
trial, however,
State’s
en banc
tivity.
proceeded
motion for
reconsideration
on the
The
Giesberg
See
moot.
jail felony
lesser offense of state
theft.
1996),
(Tex.App.-Houston [1st
131 n. 3
Dist.]
aff'd,
(Tex.Crim.App.1998).
Dear Merritt who, alsky’s appellant, to accord- that he from activities correspondence received Padilla, surprised to learn about script ing em- Kowalsky prepare for his solicitations. Padil- so- ployees during telephone to read their telephone made a presence, appellant la’s gave copies Merritt also licitations. instructing stop him to Kowalsky, call to correspondence approximately 10% Toys for Tots. Padilla soliciting funds for prospective requested contributors who their also discussed desire making written before a contri- verification toys year’s for Tots at that did not contact donate bution. Merritt anyone party hosted Organization regarding at the annual Christmas Mexican American Sheriffs for Tots solicitation. (MASO), composed depu- another union Merritt tendered funds received office. employed by ties the sheriffs Kowalsky from about once contributors mid-November, week, a search attempt segre- no Also warrant but made gate business after an pro- the funds to determine which was executed at Merritt’s County grams sup- investigator at the Harris Attor- contributors intended *5 port. Kowalsky commingled ney’s employ- took the that Merritt’s Office learned identifying funds falsely that he received from Merritt to the ees were themselves as Organization, peace they clerical at the made telephone staff who officers when Organi- all the funds a calls donations for the deposit requesting into bank belonged account that to the zation. the execution of the search Organization. During later, business, days About re- Kowalsky two would re- warrant at Merritt’s officers Organization correspondence ceive original a check from the for covered the by 75% the funds that signed to 80% of that he had mentioned the Organization. Toys to the for Appellant program. delivered Tots usually and another officer the After the search warrant was executed Kowalsky’s payment. Kowalsky check for business, Organization’s at Merritt’s the kept payment, the but the 10% of tendered Toys for board discussed the Tots tele- rest to Merritt. marketing its next campaign regularly at Guthrie, The Organization meeting. clerks at the ac- scheduled Louis the who cepted Kowalsky reported vice-president, the funds from asked whether Toys for being treasurer. The then re- funds were raised for Tots. treasurer ported he “was Appellant responded going the information to board at meeting regularly meetings. Kowalsky scheduled look into it.” At the next couple Organization, appellant went to a of board said he had meetings fundraising, “investigated Toys anybody but he recall for Tots and discuss did not Toys for Toys Ap- for Tots with could raise Tots.” discussing program Marine, pellant, explained a that he board. former Hispanic sergeant had at the “contacted In Terry mid-November after Pa- Corps Marine base who stated it was dilla had taken over as treasurer for the okay.” Organization, she noticed some of the held annu- Kowalsky Toys checks from December MASO its received memo al where ar- party, for Tots written on the line of the Christmas $1,700 ranged worth of checks. Padilla was unaware of the tele- the donation bicycles bicycles Toys for Tots for Tots. marketing for and asked rep- uniformed Marines Kowalsky speak- accepted the checks. After about resenting Toys party. for Tots at ing Kowalsky, reported Padilla Kow- 30 trial,
Kowalsky approximately any At denied intent to also donated $500 commit theft. that Kowal- said toys. worth of Several members of the sky raising funds for supposed to be Organization Organiza- recounted that the Organization generally and the corre- tion also made at least one other contribu- spondence “simply explain people tion to for Tots before 2000. Appellant acknowledged what we do.” Organization Although the made dona- that, Marine, very as a former he was tions to the amount of funds Appellant, familiar with for Tots. expended for Tots was substan- Organization, and Merritt were sued tially less than the amount of funds re- Office, County Attorney’s the Harris re- telemarketing ceived from the solicitations. $125,000 settlement, part in a sulting Pilant, employed David examiner fraud which was forwarded to the County Attorney’s the Harris District program. office, explained that bank records for the Sufficiency Legal Evidence of the
Organization Septem- that between show ber and December Appellant contends the evidence $20,515 received Tots legally insufficient to establish his criminal program through checks that had a intent commit theft because he did not “Toys notation that the donation was for any scripts approve or write used paying Kowalsky for Tots.” After 75% to by during telemarketing; the solicitors funds, Organization kept 80% of these Merritt; he did not have contact with *6 $4,000 approximately from these checks he did not have control over funds for the in written late 2000. After the search Organization or over the amount of dona- Tots; warrant was executed and after tions made to for he never Kowalsky to telemark- stop any instructed personally received funds from the eting Organization program; for Tots donations were accepted people at least four checks from made to for Tots from the funds by telemarketing; signa- who made donations intended for received his letter, thank-you Tots. ture was on a not a so- 18, 2000, (cid:127) trial, people they Perez wrote a 4. At 18 testified that On October Karen $400; not have sent checks to the telemarketer if check for they 2000, had known that would not 19, <» Young Norma wrote a On October majority receive the of the funds. The record $100; check for shows, as follows: 25, 2000, (cid:127) Sam Johnson wrote a On October 1, 2000, (cid:127) August Timothy On Stovall wrote a $150; check for $100; check for 8, 2000, o Bryant Dussetschleg- On November 2, 2000, (cid:127) On October Michael Likos wrote a $250; er wrote a check for $200; check for 22, 2000, (cid:127) Tycer Annika wrote On November 2, 2000, (cid:127) Paul wrote a On October Fisher $100; a check for $150; check for 2000, 28, o Marienne Beeck- On November 4, 2000, (cid:127) Coveney October Albert wrote a On $100; man wrote a check for $100; check for 2000, 29, ® Cartwright November John On 4, 2000, (cid:127) a On October Sandra Wilson wrote $50; wrote a check for $150; check for 2000, 17, (cid:127) Stamper December Richard On 10, 2000, (cid:127) Phillips Malcolm On October $75; wrote a check for $500; wrote a check for 2000, 29, ® Guajardo Santos On November 10, 2000, (cid:127) Gary Dr. Flores wrote On October $100; and wrote a check for $250; a check for ® wrote Thomas Clark On December 17, 2000, (cid:127) Jimmy On October Nichols wrote $100. a check for $125; a check for by letter; is insufficient to the evidence licitation and his directions isolation, and fact in merely analyzing each donations for the Kowalsky were to collect inferences rely on alternative not for must not Organization generally and pieces for the isolated explanations from or responds The specific program. State Instead, appellate at 164. is of evidence. Id. criminal intent estab- “in combi to view the evidence courts are by lished shows Id. at 166. nation and sum total.” correspondence mentioning Toys Tots by donations made appellant; Concerning Theft Applicable Law B. Toys for Tots were by Organization Law of Parties Under made inadequate relation to donations that were intended for that “[a] The Texas Penal Code states Tots; deceptive; criminally responsible party as a person personally benefited from if the offense is committed to an offense received from contributions to the funds conduct, by the conduct of another his own Toys for Tots. criminally responsible, he is for which 7.01(a) § both.” Ann. Tex. Pen.Code Applicable A. for Determination Law 2003). (Vernon responsibility is Criminal Legal Sufficiency the Evidence of which is ways, defined in several one of review, defendant, intent “acting all that the legal sufficiency a we view or assist the commission promote of the evidence most favorable directs, solicits, encourages, ... to the verdict and then determine whether offense aids, person other attempts a rational trier of fact could have found the to aid the (Ver- 7.02(a)(2) § beyond essential elements of the crime commit the offense.” Id. 2003). King reasonable doubt. 29 non (Tex.Crim.App.2000). S.W.3d “primary party is not the When jurors judges are the exclusive actor,” conduct con prove the State must facts, witnesses, credibility plus an act stituting an offense *7 testimony. to weight give their Mar promote the intent to defendant done with (Tex. State, 912, graves v. 34 S.W.3d 919 State, assist such conduct. Beier v. 687 or A Crim.App.2000). jury is entitled to ac 2, (Tex.Crim.App.1985); Miller v. S.W.2d 3 cept reject one version of the and facts State, 308, (Tex.App.-Austin 83 313 S.W.3d another, reject any part or of a witness’s 'd). 2002, pet. ref “Circumstantial evidence testimony. Id. person to that a may prove alone be used State,
In circum to an offense.” Powell v. determining party whether is 503, (Tex.Crim.App.2006). 506 legally stantial evidence is sufficient to es 194 S.W.3d parties that the guilt, “logical tablish we must consider the The evidence must show acting together accomplish their pieces force of the combined of circumstan were State, case, 555 purpose. Wygal in the with rea common See v. coupled tial evidence 465, (Tex.Crim.App.1977); inferences them.” Evans v. 469 sonable from S.W.2d Miller, State, 158, agreement at 314. The (Tex.Crim.App. 166 83 S.W.3d 202 S.W.3d 2006) any, if purpose, a common (holding legally accomplish that evidence was contemporaneous be made before or to show that exercised must sufficient event, control, determining but in care, manage the criminal custody, actual or offense, participated an by examin whether one has ment of cocaine on coffee table occur may examine the events evi the court ing pieces of circumstantial combined before, dence). during, and after the commis ring that A court must not conclude 32 (Tex.Crim. State, 806, Wygal,
sion of the offense. 555 S.W.2d at v. 810 469; Miller, 314; App.1991). jury may A infer intent from 83 S.W.3d at see also existence, any prove facts that tend to its Powell, 194 at 507. S.W.3d acts, words, and conduct of the such as It undisputed is that never had defendant. Id. Criminal intent is neces any any complainant. contact with His State, sary to establish theft. Ellis v. See if guilt, any, only party as a to theft. (Tex.App.-Houston 877 383 S.W.2d appellant’s guilt For the State to establish 'd). 1994,pet. ref [1st Dist.] theft, party jury charge instruct- determining In the evi whether jury, ed the accordance with Texas dence is sufficient to establish (1) Code, Padilla, Kowalsky, Penal or criminal intent whether Merritt, August between to December theft, commit we examine the evidence in deprive acting with the intent to the record in a most favorable to the complainants money, appropriated of their verdict, jury’s per which includes evidence complainants’ money valued between $1500 taining gained he personally to whether (a) $20,000, by deception by and less than taken, whether he allegedly from what was giving impression them a false of law or any of partially performed repre on fact that judgment affected their complain sentations that were made to the Padilla, appellant, Kowalsky, or Merritt ants, deception whether he used to obtain (b) true, promising did not believe to be can property, and whether inferences performance judgment that affected the properly from the combined be drawn transaction, complainants ap- in the which evidence. force circumstantial Padilla, pellant, Kowalsky, or Merritt did perform not intend to or knew would not 1. Personal Gain performed, be see Tex. Pen.Code AnN. determining whether the defen (e)(4) (Vernon 31.03(a), §§ Supp.2006), theft, dant had criminal intent commit (Vernon (2) 2003); 31.09 act- may we consider whether the defendant promote ed with intent or assist the experienced personal gain prop from the by soliciting, of theft commission encour- erty from the complainants. obtained See aging, directing, aiding attempting King (Tex.App. S.W.3d aid them to commit the offense. See id. ref'd)( 2000, pet. Dist.] -Houston [14th not 7.02(a)(2). 7.01(a), §§ ing King had criminal com part by intent is shown in his use of Analysis Applicable C. Law Con- plainant’s money purpose pay for sole *8 cerning Intent to Commit Criminal ing personal expenses purchasing and Theft benefit). Viewed in a personal items for Because no direct evidence es verdict, jury’s favorable to the most appellant’s guilt, we must deter tablishes used a appellant the evidence shows that evidence mine whether the circumstantial belonged Organiza to the credit card that criminal intent to com shows that he had expenses perform cover his while tion to person mit theft. A acts with intent when and ing Organization work for the received objective $1,500 it is conscious or desire to his for his services as stipend engage in the conduct or cause the result. The evi president Organization. of the (Vernon 2003). 6.03(a) § Intent that funds solicited under Id. dence also shows circumstan were used to proven through telemarketing campaign most often the the crime, Organization, for the surrounding party tial the rather finance a evidence other appellant as well as the through than direct evidence. Hernandez benefit when evidence showed The evi to commit theft Organization. of the members construc however, complete that the failed to undisputed, that Peterson dence is complete); 95% Organ the that was project controlled the finances of tion board State, 799, 800 party, attended the but v. 754 S.W.2d ization. Martinez refd) 1988, by party pet. the to host the was made Antonio (Tex.App.-San decision board, appellant. to Organization’s legally insufficient (holding evidence stipend paid appellant payment The board when evidence showed show theft Organization president his work as of the owed before dis of almost half of amount him to the credit card to and allowed use unpaid); amount Cox pute arose as to still for that work. But it is expenses cover (Tex.App. 658 S.W.2d that received undisputed ref'd) never (holding evidence pet. Dallas by any funds that were not authorized insufficient because board. great “a deal of performed showed Cox promised perform that he to services” points also out that the evi-
The State
any representa
showed
thus no evidence
dence,
fight
in the
most favorable
viewed
that
false “at the time
promise
tion or
verdict,
that the solici-
jury’s
shows
any of the
complainant surrendered
for Tots
the telemark-
tations
him”).
undisputed
Organi
that the
It is
during
period
eters occurred
of time
$1,700
Toys for Tots
gave
toys
zation
of the
president
when
was the
financially
thus it
in December
Organization, appellant “called the shots”
Tots,
consistent
gave “support”
Organization,
for the
con-
representation in the letter
with the
Organ-
trolled some of the finances for
Organiza
The
signed
appellant.
by writing
Organiza-
ization
checks for the
at least
undisputedly performed,
tion thus
This evidence is no evidence of
tion.
in the let
partially,
represented
what was
by decep-
criminal intent to commit theft
by appellant, by giving “sup
ter
tion, however, because no evidence shows
Peterson, 645
port”
for Tots. See
received
funds that had
Martinez,
811-12;
at
S.W.2d
not been authorized
the board.
one
Cox,
800;
briefs,
at
ization would that performance obligated lack of alone would be insuffi to establish intent at the a criminal offense. See appellant exchanged cient to establish time the check into (Tex. State, 293, cash.”). Phillips v. 640 S.W.2d 294 legally Crim.App.1982) (holding evidence Code, “decep Under the Penal insufficient to show criminal intent to com “creating confirming tion” is defined mit theft when contractor received down a impression words or conduct false of anything payment perform and failed to likely law or fact that to affect the under no evidence agreement because transaction, judgment another in the of contractor). Thus, deception by showed and that the actor does not believe to be Organization fact that the did not mere true.” See Tex. Ann. Pen.Code perform represented what it to the com 31.01(1)(A) (Vernon § a Supp.2006). As plainants would alone be insuffi offense, party to the the evidence must cient to establish criminal intent to commit appellant that intended for the tele show
theft. id. See deception marketers to use to obtain Deception by Appellant 3. However, here, contributions. no evidence Deception a. No Evidence of at appellant shows that intended for tele Time of Solicitation funds deception marketers to use obtain Viewing from contributors. the evidence The critical distinction between jury’s in a most favorable to the conduct that is criminal versus civil verdict, appellant the evidence shows that decep the record shows nature is whether testified that he was a former Marine and merely perform. tion and not a failure to Tots, familiar with was (Tex. State, 208, 210 v. 752 S.W.2d Webb began that signed the letter ref'd) 1988, App.-Houston pet. [1st Dist.] telemarketing, Tots knew “Here, ... (stating, Phillips unlike telling that the telemarketers would be shows critical distinction is the record organization supports contributors per failure to deception, and not mere However, implied for Tots. no form”); Phillips, 640 at 294. see S.W.2d the com express promises were made to is deter Proof of intent to commit theft concerning sup the amount of plainants alleged time the criminal act mined at the Organization give port the would State, v. 663 is committed. See Wilson Rather, representations for Tots. 834, (Tex.Crim.App.1984) S.W.2d 836-37 telemarketing type the letter and the (“Relevant deprive intent to the owner of simply authorized were is the accused’s intent at the property support Toys for State, v. 477 taking”); time of the Kinder it did. which (Tex.Crim.App.1971) S.W.2d strongly relies on dissenting opinion legally insufficient (holding evidence Marine, that, appel- as a former proof no showed evidence prove theft because initio, in this he could not solicit funds ab when evi lant knew promises were false for Tots. The use paid as manner dence showed some Corps owned the Marine agreement); Reed trademark partial performance authorized, and the (Tex.App. (“To judgment against Organization have civil pet.) prove no its -Amarillo here, The issue them for that conduct.5 deprive intent to allegation *10 may practice person a be improperly decep- tive trade for which Using is a 5. a trademark
35 however, primary making getaway to sisted actor in appellant is whether intended after crime committed is insufficient a complainants making deceive into dona- support party defendant’s conviction as tion. No evidence shows an intent State, 71, crime); Guillory v. 877 S.W.2d appellant complainants. to deceive the 1994, (Tex.App.-Houston pet. 74 [1st Dist.] signed by letter informed The 'd) if mere (holding ref that evidence shows they contributors that the checks crime, at presence of defendant scene writing Organization. were for the The more, scene, flight even his from without letter then told contributors that the Or- then it is insufficient to sustain conviction ganization supports Toys for which it offense). party to undisputedly did. No evidence shows by appellant intent to commit theft Viewed in a most favorable to the Wilson, deception verdict, of the contributors. See jury’s the evidence that af- shows 836; Kinder, at investigation began 663 S.W.2d 477 S.W.2d at ter the criminal with Reed, 586; 717 at the execution of the search warrant on S.W.2d 645.6 business, appellant Merritt’s was not forth- Deception b. After Event is Alone coming with about his Enough Not to Show Intent knowledge of the for Tots telemark- points The State board, first, eting. Appellant told the at “deception” after the search warrant was only that he look into the matter. run on decep Later, Merritt’s business to show appellant said that he had “investi- tion appellant. Deception gated Toys anybody after an al for Tots and could leged may crime is a that raise for Tots” and that he circumstance permit Hispanic sergeant an had “contacted a at the guilt. inference of Valdez v. See State, 317, Corps Marine base who stated it was (Tex.Crim.App. 623 S.W.2d 321 1979) okay.” The suggests State (noting alleged that event after had to know these statements were untrue crime, scene, flight such as from is circum appellant’s familiarity due to with inferred); guilt stance from may which be Tots. Even if these decep- statements were (Tex. State, 227, Sosa v. 177 S.W.3d 230 tive, the statements occurred after (fol App.-Houston pet.) no [1st Dist.] investiga- commencement of the criminal Valdez). However, lowing evidence that tion, and, alone, are insufficient to show only deception shows after the fact is le criminal intent to commit theft at the time gally insufficient to in establish criminal Scott, the contributions were made. See tent at the telemarketing. time of the See 168; at Guillory, 877 S.W.2d (Tex. Scott S.W.2d at 74. 'd) that, App.-Austin pet. (holding ref alone, standing proof that defendant as 4. The Combined Evidence 17.46(b)(5) civilly signed by appellant. sued. Under Section in the letter No evidence A, is, deceptive practice DTP a trade any knowledge shows that of or representing goods development scripts. or services have role in the or use of the characteristics, sponsorship, approval, in- Similarly, falsely Merritt had telemarketers uses, benefits, gredients, quantities officers, represent peace themselves as they person which do not have or that a has improper activity at other occurred Merritt’s status, affiliation, sponsorship, approval, undisputedly office. shows or connection which he does not. appellant had with no contact Merritt no 17.46(b)(5) (Ver- § Tex. Bus. & Com.Code Ann. any Mer- evidence connects Supp.2006). non ritt’s activities. developed script 6. The telemarketers went much further than what was mentioned *11 complainants of these logical deception contends that the force shows who
The State of circumstantial the pieces Organization, of the combined wrote checks to which case, coupled in the with reason- evidence for Tots. supports them, provides legally from able inferences the dissenting opinion suggests The that support appellant’s to sufficient evidence if it jury simply could have convicted be- Evans, 202 at 166. conviction. See S.W.3d However, Kowalsky’s testimony. lieved light in a most favorable to the Viewed Kowalsky’s testimony reliance on verdict, jury’s the combined evidence acquittal appellant, result because that he had shows that knew Kowalsky plainly testified that expressly that tells signed correspondence commit theft or had no criminal intent to Organization that lends a contributors dissenting opinion The criminal act. to for Tots “helping support” hand arrangement that also finds distasteful requesting people “give that what we keep allowed the telemarketers to over can”; Toys for Tots that he discussed the in checks 75% of the total funds collected Kowalsky; that telemarketing with stating “Toys a notation for that included pro- the letter that mentioned the signing That financial Organization. Tots” and the Toys for gram, approved he of the Tots division, however, undisputedly was ar- telemarketing just approved as he other ranged by Organization, others in the telemarketing campaigns; that he failed to Additionally, of as- appellant. the division funds arrange for or tender received customary here is consistent with the sets the telemarketers telemarketers division assets between with what amounts commensurate and their clients. contributed; and that he did not disclose record that only evidence knowledge telemarketing for his the de- suggest deception by appellant is directly it Toys for Tots when asked about the criminal ception that occurred after had ceased. telemarketing after the when related investigation began role in Appellant charged with his anyone money that could raise complain- telemarketing that asked the okay, it was sergeant Tots and that a said Organization un- ants to contribute to the board for deception but that later Organiza- that the representation der the no that at the Organization evidence Tots. did supports tion made, appel- time the contributions were permission to use the not have anyone to have deceive lant intended name, civilly for that Tots and was sued The bottom line is complainants. conduct, large in a civil which resulted in the record there is no evidence Organiza- him and the judgment against encouraged Kow- appellant either used Toys for improper tion. But use of the misrepresen- make alsky anyone else to improp- not make what is Tots name does to obtain their complainants tations to the subject liability in civil court er conduct that, viewing the money. conclude We theft. The com- into a criminal offense of favorable to the in a most told in the letter plainants plainly considering the com- jury’s verdict was for signed by appellant infer- and the reasonable bined evidence and that their contribu- Organization evidence, a rational trier from that ences “carry tion was for could not have found of fact only that on.” The letter told contributors or assist the promote intent to acted with “support” Organization gave soliciting, encour- of theft commission by the evidence which is shown attempting directing, aiding or aging, No evidence undisputedly have occurred. *12 31.03(b)(1). if is not effective § Consent See Tex. aid others to commit the offense. 31.01(3) § 7.01(a), 7.02(a)(2); by deception.” Id. King, §§ “induced Ann. Pen.Code means, (Vernon “Deception” Supp.2006). at 562. hold that the evi- 29 S.W.3d We legally insufficient to establish dence is (A) by or creating confirming or words guilt party as a to theft because appellant’s of law impression conduct a false that he had the criminal no evidence shows affect the likely fact that is or intent to commit theft. in the trans- judgment of another action, and that the actor does not
Conclusion true; ... or to be believe trial judgment reverse the We judgment court and render (E) that is like- promising performance guilty of the offense.
is not ly judgment to affect the of anoth- in the transaction and that the er JENNINGS, concurring. Justice perform actor does not intend to or TAFT, dissenting. Justice performed, will not be ex- knows JENNINGS, Justice, perform TERRY failure to cept concurring rehearing. promise on in issue without other evi- not knowledge dence of intent or is join opinion. I Justice Alcala’s excellent proof that the actor did sufficient I write that there separately emphasize perform of knew the not intend simply is no the record performed. be promise Christensen, appellant, Edward under parties, encouraged law of either used or 31.01(1)(A),(E). Moreover, person § Id. anyone misrepresentations to make intent, intentionally, or with “with re- acts complainants money. to obtain their of or to a spect to the nature his conduct of conduct when it is his con- result his appellant,
There is no evidence that act- objective engage or desire to scious ing promote with the intent to or assist the 6.03(a) § cause the result.” Id. conduct or by commission of the offense of theft de- (Vernon 2003). “[rjele- cases, In theft solicit, ception, encourage, in fact di- did proper- of deprive vant intent to owner rect, aid, attempt person to aid another ty the accused’s intent at the time of is to commit the offense. See Tex. Pen.Code taking.” Wilson 7.02(a)(2) (Vernon 2003). § Nor is Ann. (Tex.Crim.App.1984). its 836-37 there appellant, acting evidence that appro- charge jury, the trial court required with the kind of culpability language of the priately tracked the above the offense of theft did in deception, had the statutory provisions, and the State fact cause aid an innocent or non-re- appellant actually in- burden to show sponsible person engage pro- in conduct complain- that the consent of the tended hibited the definition of the offense. by deception ants in this case be induced 7.02(a)(1). § See id. defined above. provides The Texas Penal that a Code argues commits the offense theft if he The State that the evidence is person factually support “unlawfully appropriates property with in- sufficient for the offense of deprive property.” tent conviction owner 31.03(a) (Vernon “appellant in- Supp.2006). Appro- by deception § theft because Id. gain money for Harris priation property [the if “it is duced others to unlawful (‘HCDO’) County Deputies’ Organization ] without the owner’s effective consent.” Id. the let- signing of the The State asserts that by soliciting donations on behalf (1) ter, approved telephone so- “appellant program when those Toys for Tots *13 marketing licitation or of individuals to provid- donations were not intended to be on behalf of money donate the HCDO provided to—the ed to—and were program.” for Tots the (2) program, for Tots when those provided donations would not have been that “the letter au- The State contends represented it not been that the dona- by appellant had was to thorized and being made on behalf of the tions were to the HCDO on behalf of induce donations (3) and those in program, program for Tots when Tots when fact it to the provided donations were fact not was clear that those donations would not pro- for Tots program, provided for Tots but were instead be to the However, very first stipends appellant gram.” to the and sentence pay used to that it expressly of the letter indicates members of the Board of other al- you fact a thank letter donations HCDO.” thank- by the After ready received HCDO. support argument, In of this State support, their ing the addressee for exclusively following letter relies on goes on to note HCDO letter signed by appellant: support” to the helping “lends A hand Friend, Dear program. County Depu- of the Harris On behalf critical. The distinction here is Organization, please ties’ me let Person- prove, at the time State had the burden ally you your generous sup- thank money, complainants’ taking of the port. acting with intent to appellant, either that or the commission of the promote assist time the Harris Every year at this in fact by deception, of theft did offense County Deputies’ Organization lends A direct, aid, solicit, attempt encourage, support hand of to the “TOYS helping offense, person aid another to commit Program program. FOR TOTS” This or, culpability re- acting with the kind of families provides toys for children offense, did in fact cause or quired for the So, cannot afford to do and to those who person non-responsible an innocent or aid family. children who have no Just by the engage prohibited in conduct that there Is a at the end knowing offense. definition of the gives hope tunnel to these chil- year after Let us all as a dren Year. fact, Kowalsky, In the telemarketer Ron community give what we can in order to HCDO, “could funds for the hired solicit Joy into the bring Laughter Some conversation specifics” not recall the of his are lives of those who less fortunate Toys for Tots. The about Than others. exchange: following record reveals you Did discuss the Okay. ... [State]: you I like to thank Again Once Program and solicita- Toys for Tots Cooperation. your generous support you before tion with Mr. Christ[e]nsen assistance that only through It is such that? began soliciting for carry can on. we drafting a let- [Kowalsky]: I remember Sincerely, ter, in his mailbox to a letter putting [Signature] disapproved. approved have it Christensen, Ed President letter, Kowal- signed the After HCDO. for the began telemarketing County Deputies’ Harris sky to raise he would use the letter Subsequently, he subcontracted with John funds on behalf of the and not the HCDO. Merritt to solicit HCDO, gave the letter to Merritt. he sum, no evidence presented the State However, there is no evidence at all that actually jury prove preparation role in the complain- that the consent of the intended used scripts or use of the by deception. in this case be induced ants telemarketers. There is no evidence that no evidence the record There is rep- he knew what the telemarketers were parties, the law of either appellant, under *14 resenting complainants to obtain Merritt, Kowalsky, or encouraged used or For there is no money. example, their to anyone complainants else to deceive the appellant evidence that knew that the tele- money. deprive them of their misrepresenting marketers were them- County Deputies selves as Harris Sheriffs TAFT, Justice, on dissenting TIM specifically asking for donations for rehearing. Also, Toys for Tots and not the HCDO. holding I respectfully dissent from the appellant Merritt had no contact with or that the insufficient. I HCDO, anyone else at the and he worked present to the facts viewed in the write independently. verdict, jury’s to light most favorable that, by signing It cannot be inferred considering the combined evidence and the letter, appellant actually intended for therefrom, reasonable inferences as called Kowalsky or anyone misrep- else to make majority opinion. Evans v. by See to the complainants resentations to obtain State, (Tex.Crim.App. 202 S.W.3d 166 money. their The presence signa- of his 2006) (we force of logical must consider support ture on the letter does not pieces combined of circumstantial evi appellant, inference that acting with the dence, inferences coupled with reasonable promote intent to or assist the commission therefrom); King v. of the offense of theft in deception, did (we (Tex.Crim.App.2000) view all evi solicit, direct, aid, encourage, fact or at- verdict). in to dence most favorable tempt person to aid another to commit the offense. Nor can it be inferred from his ongoing The evidence showed an course signature on the letter that act- appellant, whereby County Dep- of action the Harris ing with culpability required the kind of (“HCDO”) mon- uties’ raised by deception, for the offense of theft did in ey by employing telephone solicitors who fact cause or aid an innocent or non-re- money received 75% to 80% of the raised. sponsible person engage pro- in conduct telephone solicitations mentioned vari- hibited the definition of the offense. ostensibly sup- ous charities HCDO was
Also, Kowalsky’s very testimony porting, causing persons limited solicited to donations, dealings a appellant about his with does not believe that or at least any inferences, and, thereof, support again, portion going such substantial were had of action appellant Merritt no contact with or these charities. The course was anyone by appel- at a signed else the HCDO. testi- set motion letter lant, HCDO, Kowalsky fied was to raise funds for the President of whenever HCDO, Kowalsky campaign program did not tes- was himself new solicitation pri- tify begin. Kowalsky1 that he ever informed Ron was the originally Kowalsky, prior appellant having 1. When HCDO contracted with become fund- appellant had called off the mary telemarketer with whom interaction, At the next acting raising as President for Tots. HCDO Merritt Kowalsky employed also John but claimed have meeting, appellant Board As HCDO and others as subcontractors.2 sergeant unnamed at the checked with an President, separate two they who stated what Corps Marine base authorizing the solicitation of funds letters However, okay. HCDO doing were mentioning Toys this manner authoriza- permission had official never charity. As a Marine as the featured For Tots tion to be involved father, brothers, uncles, and cousins whose much less to solicit donations capacity, Marines, that he testified reasonably could Toys for Tots. Jurors How- very familiar with for Tots. per- appellant’s attempt get have viewed ever, not allow Corps the Marine does as sergeant, from some unnamed mission solicitations, and does not allow telephone getting approval, official opposed telemarketers to dilute the hiring cover-up. part of *15 buying gifts for the go that would toward and December September Between Toys of for Tots. As HCDO recipients $20,515 received via President, one of two HCDO appellant also was A Kowalsky “Toys notations for Tots.” signers on each of the checks checks with re- may for to 80% of the funds have been made received 75% donation of $500 telemarketing pro- through ceived Tots in Toys HCDO to for gram.3 2000,4 bicycles of worth $1700 direction, to by HCDO given, appellant’s at a warrant police After the executed deputies’ union’s Toys for Tots at another telemark- seize evidence at John Merritt’s bicycles in 2000. The party Christmas location, to ex- eting appellant was asked police after a raid on only were donated Toys Board about for plain HCDO where telemarketing operation Merritt’s Tots, he look into it. and he said would letter, authorizing original an of reasonably ap- have viewed Jurors could program, and Toys for Tots solicitation inculpatory, as pellant’s lack of candor letter, were scripts embellishing on witnesses, when, according even to his own Indeed, in uni- the Marines recovered. checks already had been shown union deputies’ other Christ- form at the Toys copies Tots and with notations for for by their event had been instructed concerning Toys for mas of the letter he HCDO, rec- search of HCDO’s Kowalsky 4.While an exhaustive of was referred President by HCDO to produced no check written ords by appellant. HCDO Tots, writ- Toys $500 checks for were for two Toys for Children ten to "M. Brister’s Kowalsky in lists of testified that he turned 2. Abercia,” Toys, in the Constable Funtastic Merritt, subcontractors, including his These were the week of December 2000. first time. Merritt testified HCDO from time to toys for for only two checks found written only with that he had one contact deputies' deputy A from another children. phone when Merritt and that was over the union, approved which was an concerning problem a not had a "sale” supporter, he received a check 1998, 1999, testified that himself to Merritt identified for Tots. in or 2000. $500 for from HCDO Kowalsky. working appellant as for response check was in deputy said the This of request for funds on behalf his by the tele- percentage received 3. The relative Tots, annually to the request he had made split typical HCDO is the marketers versus many years. even the Not HCDO Board for soliciting virtually between telemarketers deputy he had received check the said one organization. every police and fireman's the HCDO records. could be found in eight arguments raises as to had been informed of the superiors, who factu- why is both bicy- investigation, criminal to receive the insufficient, arguments are ally but these incident, knowing that the bi- cles without point. point appel- is that beside the to law cycles would have to be turned over scheme, in knowingly lant set motion investigators kept enforcement to be as by Toys which he knew was not authorized Thus, evidence. the donation could have Tots, of donors and which hundreds jury attempt been an viewed giving deceived into thousands of dol- up mitigate damage. cover Unlike they thought lars because that most HCDO, deputies’ the other union was an money go Toys for Tots. approved supporter for Tots. The give fact that chose to the bikes viewing the evidence While through supports that other union further to the verdict does not most favorable the inference that knew HCDO usually appel- an examination of an involve approved supporter an story, lant’s side of the such an examina- Tots. the HCDO Board found out When why jury tion here adds further reason solicitations had been made for likely believe the main chose to State’s passed it a motion to determine how witness, Kowalsky, than appellant, rather much been so received order testified, regarding who also the mechanics give it to for Tots. HCDO Treasur- fundraising program. Kowal- HCDO’s er, Padilla, Terry cooperate refused to sky testified about a common course of *16 the effort. Her position was that the involving pro- conduct other solicitation payable regardless checks were to HCDO grams campaigns in addition to the Toys of whether for Tots had been written Toys program. for Tots The usual modus place noting the the purpose operandi for to inform was Kow- trial, check. At 18 of the 21 alleged com- alsky entity, Kowalsky of a new charitable plainants, totaling who had written checks letter, prepare would $8,000, They testified. it; would not have thereby the so- sign authorizing would sent they checks to the if telemarketer had campaign go licitation to forward. The Toys known that script for Tots would not re- provide letter would for the case, majority ceive the of the Kowalsky funds. telemarketers.5 this Kowalsky 5. provided county Deputies’ Organization testified that the letter Harris lends script, pre- and Merritt testified that he ‘Toys helping support a hand of to the for pared script provided by from the letter program. program provides toys Tots’ This Kowalsky. Unfortunately, the record does for children of families who cannot afford script not contain the wrote for the Merritt so, to do and to those children who have no Instead, Toys campaign. for Tots defense knowing family. Just a at there is script program, counsel used a from another gives hope the end of the tunnel to these Program, the Annual Crime Prevention which year year. children after Let us all as a apparently had been altered one of Mer- community give what we can in order to ritt’s telemarketers in order to be used for the bring joy laughter some into the lives of Toys campaign. for Tots who are those less fortunate others.” attempted exploit Both sides to the similari- script regarding Toys The altered stated ties and differences between the altered campaign: right for Tots "And now we’re script appellant signed and the letter re- working Toys program.... on our for Tots garding Toys portions for Tots. The of each $300, $200, [pledges Will one of those pertaining Toys for Tots are set out for okay year, you be for this so the kids $100] comparison. deputies you as well as the could count on regard The letter stated in to the for y par- this ... ? ...—Kids that don't have campaign: “Every year Tots at this time the appel- not remember he or the letter was could whether sent donors up they requested come for solicitors was when it for lant had with the idea or for they Tots or whether their records verification. Some for had discussed required donors the letter for verification before or after had submitted it letter he Thus, they give. before the record definitely he remembered appellant, but a shows that the letter was not used as discussing involving the letter State, 174 you King thank letter. See Tots with either before or after (Tex.App.-Corpus 811-12 S.W.3d submitting signature. it to for his 'd) 2005, pet. (looking ref to all facts Christi testified, contrary, that Appellant complainant and circumstances find that Kowalsky prepared by the letter was after by deception victim of theft even Kowalsky had asked appellant what were stating though signed she had document supported the various causes HCDO giving money gift). she was years. Appellant over the testified Padilla, presented Terry letter, merely you the letter was a thank Treasurer, as a witness. Padilla HCDO a charity sup- intended to show HCDO testified that she troubled when she ported, to be sent after a donation was to notice began checks with concurring opinion received. As the men- Tots notations because she knew HCDO tions, line of thank the first the letter does was not affiliated with the United States the donor on behalf of for the HCDO Corps Program. Marine However, the generous support. donor’s Kowalsky brought first contacted who She letter, eight-line main an portion of letters copies appellant. in old paragraph para- between two two-line brought appel- Padilla then the matter graphs, speaks lending helping HCDO appel- lant’s attention. She testified that very in a hand describes immediately lant looked shocked and made touching manner Tots does what phone stop call to fundraiser children, poor “Let us all ends with *17 any for than fundraising cause other community give as a we can in order what course, Of on cross- prosecutor HCDO. bring joy into the laughter some and that presented possibility examination of those who fortunate than lives are less may look of shock have been Thus, the appears others.” letter itself Indeed, caught. the record being from you of a than a thank be more solicitation appel- made or by shows no effort Padilla Indeed, a donation. donations most stop Toys for try depositing lant to charity not received did indicate for what try in or to Tots checks HCDO’s account so mention- they given, letter donations. any to refund not have ing only single charity by appellant action in only regard very letter. A you been a useful thank stop any further solicitation was you thank letter for donors who donated arrange and a dona- Toys for then to have consistent HCDO would been more bicycles to for Tots. tion of appellant’s story that the contribu- evi- Finally, appellant and not the introduced into tions were solicited for HCDO existed, charities, letter, any agreed judgment permanent and no such if dence the but Moreover, civil only injunction times that resulted from the suit produced. was gifts poor children and ents that can kids that vide Christmas afford Xmas.—And any parents have at all.” orphans. don’t exploit a script letter Both the and the pro- proclivity support efforts to natural brought by County Attorney’s job originally promised. See Ellis Harris State, 380, (Tex.App. on behalf of the of Texas Office State ref'd) HCDO, against appellant, Kowalsky, (up pet. Houston [1st Dist.] provisions Merritt. One of the of that holding by deception for theft conviction judgment was HCDO repeatedly agree when Ellis entered into in public apology published make a to be provide financing ments to for credit-chal the Houston Chronicle and the Harris that record lenged complainants on basis Star, County published by a newspaper deception, merely established failure to HCDO, as follows: $1,700 bicycles perform). The worth of County Deputies’ Organiza- majority opinion partial per
The Harris views as tion, Christensen, given Toys Local No. and Ed in this case formance president, apologizes its to the United Tots after the search warrant been Corps “Toys Marine for Tots” telemarketing opera States executed on Merritt’s Program already citizens Harris tion. for Tots had been County any misunderstanding investigation, alerted to the so that telephone bicycles confusion caused their so- were received Marines as evi licitations in the name of the United dence to be turned over to law enforce Corps “Toys delivery States Marine for Tots” ment. This is akin to the of $8000 in Program 1999 and 2000. These Ellis partial performance claimed was solicitations were made without the Ellis v. which found but this Court knowledge permission performance United not to be under the terms of Corps “Toys States Marine for Tots” importantly, contract. See id. More Program and will not repeated relationship be there no contractual here future. between HCDO and the donors. public apology This ap- HCDO and evidence, I would hold that the viewed in pellant telephone for their solicitations proper light, considering the combined the name of the United Marine States therefrom, proves evidence and inferences Corps “Toys Program. for Tots” beyond a reasonable doubt that believing appel- Faced with the choice of giv- intended donors be deceived into Kowalsky’s lant’s or version of what the ing money to HCDO that was meant for used, letter jury was and how it was Toys for Tots and aided the commission was entitled to Kowalsky. believe See by authorizing *18 the offense the solicitation State, Margraves v. 919 campaign setting it in motion his (jurors (Tex.Crim.App.2000) are entitled to signature on the solicitation letter. Ac- accept reject one version of an- facts and cordingly, respectfully I from the dissent other). holding that the evidence is insuffi- majority opinion would view the cient. facts this case as a civil matter akin to
theft resulting convictions from otherwise disputes
contractual civil as in Peterson v.
State,
(Tex.Crim.App.1983)
Crim.App.1982). distinguished This Court involving
those two cases as construction problems
contracts where cash-flow made impossible complete
it for contractors to