Daugherty, Tonya Jean

oth- of the two sentences stacking the says: majority The er victims. only part here conclude

We illegal— order is cumulation judge’s

trial the sentence for inclusion of involving sequence A.S.

count any doubt If we had sentences.

stacked intended to judge the trial

about what to him

do, these cases we would remand But it order. the cumulation

to reform pronouncement from the oral

is clear Therefore, in con- intent was.

what his judge’s pro- oral

formity with the trial law, reform with the we

nouncement and to delete the sen- order

the cumulation A.S. from involving the count

tence for of stacked sentences sequence for the counts the sentence

to stack the sentence for the

involving upon N.P. involving

count C.C. Op. at *8.

Maj. tell, authority far as I can we no

As sequence of reform the trial court’s and we have not been asked to

stacking, the court of

do so. I would hold court’s modification of trial

appeals’s and would remand

judgment was incorrect permit trial court to

the case to the the cumulation order. judge

trial to correct

Therefore, I respectfully dissent. DAUGHERTY,

Tonya Jean of Texas. STATE

No. PD-1717-11. Appeals of Texas.

Court Criminal

Jan.

655 out office for her and her space husband’s window-tinting company. Appellant wrote $1,657 deposit. as a of check The rest $48,000 the approximately price contract project was not until the was complet- due time, however, appellant ed. At that no money to longer had the the contrac- gave tual debt. She contractor an jury “insufficient funds” check. A convict- of obtaining ed her of theft services for by deception contractor’s service when she gave him the insufficient-funds check after build-out. The court appeals jury’s reversed the verdict acquittal rendered because it that the determined evidence was legally support the insufficient to conviction.1 We granted petition the State’s to decide prove whether the failure to that appellant performance secured the of the contract with a “worthless check” was merely an immaterial variance under Gollihat2 whether to prove the State failed the es- sential that an element act of Johnson, Firm, Ryan Law LeCrone of the contractor’s Sherman, TX, Daugherty. Tonya for Jean services.3 We conclude that Johnson-Liu, Emily District Assistant the offense of failed theft of ser- McMinn, Attorney, McKinney, Lisa C. vice so we affirm the deception, court Austin, TX, Attorney, for State. State’s appeals. OPINION I.

COCHRAN, J., opinion delivered the KELLER, which Court P.J. 16, 2008, appellant On April and her PRICE, WOMACK,JOHNSON, and husband, Daugherty, Paul entered into ALCALA, JJ., joined. contractor, Gary a general contract with Bailey, for Mr. to finish out office signed a construction-service general Daughertys’ window-tinting with a to build space contract contractor for the State, 05-10-00832-CR, Daugherty v. v. No. This Court held Cada State that "im (Tex.App.-Dallas WL at *3 material variance" law as set out in Golli 2011) (not Aug.24, designated publica- statutory apply specific har does not tion). alleged in elements the indictment. But allegation happens what when the at issue (Tex.Crim. 2. Gollihar 46 S.W.3d 243 part is not a element App.2001). originates the definitions of the offense but entirely? from another statute Does Golli ground 3. The State’s sole for review is as two-part materiality apply? test follows: har ’s explained lant that “we had use the for a little The contract was business. $48,000 in all. In accordance we account to more than bills, practice, normal his con- Bailey’s living our our with Mr. our— company, Expe- the money that we did have in the stipulated expenses, tract the so rtint, deposit up front a small pay Bailey] would ser- beginning pay [Mr. “lion’s when share” pay vices, up and then got ate with the actually prepay, a certificate was project delay building.” in the to the con- According occupancy obtained. Daughertys at a Bailey Mr. met to be tract, thirty-day a supposed it was 14th, they July on local Starbucks completed by June job the build-out with him was gave two checks: one for the would Daughertys’ landlord 7th. The build-out landlord’s of the and the portion build-out, of the some major portion $15,871 other —a check for their own —for tenants, $32,000, Daughertys, while the out portion. wrote the two $16,000. pay about would Expertint company checks on the account.4 Bailey a check for gave Mr. Bailey told Mr. Daughertys $1,657 April Mr. deposit on 16th. for the account; deposited” “funds were successfully deposited that check Bailey money Paul was from coming said that the bank, the nec- his he could obtain but Bailey American Mr. took Express. When permits for over a month. essary building later, days two checks to bank Therefore, de- project significantly Bailey money Mr. was not there. called layed. Bailey Mr. finished the build-out Paul, back to and then went the bank 2nd, on but he did not obtain the July days later again three or four and tried occupancy July until 10th. certificate of Mr. again, but without success. Daughertys He that he called the said more, Paul called Paul once assured we week before “because I knew about a Mr. Bailey problem being there, virtually everything was look- were of, Eventually, taken it was not. care but them ing He called to make sure good.” Mr. the “hot check” Bailey contacted divi- enough “time make ar- they had County D.A.’s sion of the Collin Office. they if were rangements” short of Gary Investigator D.A. Cochrane testi- The Daughertys that moment. assured to resolve the fied he tried check they him that able to make But, fact, She him problem appellant.5 told payment. Daughertys that she check that wrote the bounced and they had spent Expertint money Bailey the that she owed Mr. contractual payment use for the of the intended to debt. She that she could the debt personal living expenses dur- said build-out trial, time, possible a ing delay. appel- they over discussed the construction At so Daughertys’ Exhibit According appellant, print- 5. When Defendant’s shown time, of town at landlord was out so out of website for the Collin the Internet portion could not write a check County Attorney’s Hot Check Divi- District Eventually, build-out. landlord sion, agreed Mr. Cochrane website Bailey’s Mr. portion in return for release accept cannot states that "the D.A’sOffice against property. lien a contractor's prosecution: following of checks for ... kinds Expe- Appellant testified that she knew that goods, products or Checks no where the funds to the check rtint did not have cover exchange given ... were in immediate [or] 14th, (or after) July time in the bank on given pay pre-existing checks debt.” Mr. but she wrote the two checks to make better about the and to "feel situation” paid. him that he would be reassure quarter with a down fol- act payment plan ceptive giving him a bad check on or monthly payments. Appel- lowed three July about 2008. A jury convicted agreed plan, brought lant and she appellant of that offense and sentenced her $4,000 $3,500 payment down to their year to one confinement in the State Jail monthly meeting. pay- She made the next Division, probated years, for two and resti- late, days make ment few she did not $8,317.33. tution of payments. explained the last two She The court of appeals appel reversed company, Expertint, their went out of lant’s conviction and entered a business when the build-out wasn’t com- State,6 It acquittal. relied on Cortez that, pleted on time. admitted State,7 v. Gibson concluding “any folks,” “like a lot of she and her husband deception ‘by issuing committed pass by economy were affected in 2008. check, ing a when the defendant did not The total appellant paid restitution that have sufficient funds in and on deposit,’ as $7,658.67. was appellant When couldn’t alleged indictment, in the incapable restitution, pay the remainder of the affecting Bailey’s judgment regard to charges State by filed theft of service the construction services he already deception. completed.”8 The court of appeals fol The indictment read that appellant, on lowed our well-established precedent 14, 2008, July or about holds that the deceptive act must occur threat, by deception, or false token: to before, after, the other person has check, wit: by issuing passing performed his service.9 when the defendant did not have suffi- cient deposit funds and on with the II. payment bank for the in full of the check as well Under Texas Penal as other checks then outstand- Code Section 31.04(a), ing, intentionally statute, knowingly secure theft-of-services performance namely, required of a State is con- the following: services, struction of the value of at least 1) The defendant had the intent to avoid ($1,500.00) Fifteen Hundred Dollars payment for a service that she knows Twenty less than Thousand Dollars provided only for compensation, ($20,000.00)from Gary Bailey, intending payment avoid for the service and 2) intent, acting with that she intention- knowing that the service provided ally or knowingly compensation. 3) person’s secured the other perform- simply, Put more ance of a service appellant secured the performance of Mr. 4) Bailey’s by construction services by deception.10 de- 6. 582 (Tex.Crim.App.1979). completed S.W.2d 119 obligations has of his transaction, any deception later 7. (Tex.Crim.App.1981) (op. 623 S.W.2d 324 incapable affecting retrospectively his reh’g). judgment already complet- in what he has ed.”). Daugherty 2011 WL at *2 ("Any deception that occurs after the other Cortez). (citing Id. at *3 Gibson and person completed performance has of the ser- 31.04(a)(1) ("A allegedly vice stolen would not meet this re- person Penal Tex. Code if, quirement judgment [of affected the of anoth- commits theft of service with intent person er in the payment transaction]: once the other avoid for service that the actor must at the services will not conviction elements occur All of these theft of services.13 defendant’s “de- The defendant must have “se- same time. that she here, ception” issuing implicit- a check Mr. victim’s cured” the services — — will be ly explicitly by claims honored by an act of Bailey’s construction work — as is likely the bank —must be such is, proof must be deception.11 That judgment provid- affect the of the service (1) upon appellant’s relied that Mr. ie., er, perform him to ser- to induce when he performed prior act of provider vice.14 the service has (2) But once services, and appellant his build-out performance, contractual Mr. for his intent had no already complet- in what has that she committed at the moment retrospectively ed cannot be affected deceptive act.12 any purported deception, issuing such as alleges the indictment theft When worthless check.15 “deception” through the is of services timing Why important? that the check suance of a bad upon a performance liability depends person’s was of the Criminal issued after compensation: perform promise knew provided ... intend to or knows is intentionally knowingly performed. or secures the actor would not be deception, 31.01(1). Id. performance at§ the service of threat, token[.]”). or false by deception Theft requires 12. service of "deception” purposes of the 11.The term purpose. of The defendant have must means: statute theft of services purpose the services” to "obtain of anoth- (A) confirming by creating or words or con- er, simultaneously pur- and she must have a impression duct a false of law or fact pose to deceive. "If the actor believes in the likely judgment affect that is to of accuracy impression he of the seeks to con- transaction, in the and that the another vey, guilty he will not be of a violation true; not believe to actor does be by deception] Section 223.3 even if his [theft (B) failing impression correct a false to ALI, belief is unreasonable.” Model Penal likely law or fact that is to affect the (1980). § cmt. at 181 223.3 Code transaction, judgment of another previously the actor created or Gibson, (evidence 623 S.W.2d at 326 conduct, by words or confirmed "presented a check to defendant a hotel for that the actor does now believe to ... previously rendered could not true; be judgment complain have affected the of the (C) preventing acquiring from another in- ing delivery of witness in the the services likely judgment to affect formation his allegedly pre because the check stolen’ transaction; in the sented after the services been ren (D) selling transferring or otherwise or en- Cortez, ”); (stat dered.' S.W.2d at 582 120-21 disclosing cumbering property without ing any deception that occurs after the interest, lien, claim, security adverse completed performance provider service has legal impediment enjoy- or other to requirement will not meet the ser theft of lien, property, ment of the whether the person deception; vice “once the other has interest, claim, security impediment or obligations of his valid, or is or a matter is or is is not transaction, any deception in the later record; or of official affecting incapable retrospectively (E) likely promising performance that is already judgment complet in what he has judgment of affect the another ed.”). transaction and that actor does not perform intend to or knows will not be 326; Gibson, Cortez, 623 S.W.2d at 582 except performed, per- failure S.W.2d at 120-21. promise in form the issue without other knowledge evidence of intent is not Id. proof that actor did not sufficient culpable sum, mental state at the time the per- In the deception must occur rendered, the service performs son some criminal act and is and that before deceptive act must induce person the other convergence guilty bad act and a provide the service. The other person by deception mind.16 Theft of re- service rely upon must deceptive defendant’s quires that the defendant intend to de- act in providing the service.19 provider fraud the service before that person provides the and the de-

fendant must commit some act of decep- III. account, lying about her bank giving

tion — case, In this appellant, like the de provider the service a bad promis- Gibson, fendants Cortez and wrote a bad ing a leasing contract when the check provider service had com after so, defendant has no intent to do etc.— pleted performance. That check could likely affect the not have affected Mr. Bailey’s judgment provider.17 service And the pro- service performing his services to renovate appel actually vider upon must relied space. lant’s office He already done deceptive act in providing the service.18 with the job.20 6.02(a); see, e.g., 1991) (con 16. Tex. Penal Code Cookv. (Tex.Crim.App. 805 S.W.2d 442 (Tex.Crim.App. cluding 884 S.W.2d upon reliance the defendant’s 1994) ("[I]n crime, order to constitute a is an by deception). element of theft sole, act accompanied by or actus reus must be That reliance need not be the or even "); criminal controlling, mind or mens rea why Peterson v. reason the victim decided to State, 807, 645 S.W.2d (Tex.Crim.App. provide 811 the but it must be a substan 1983) theft, (to deprive constitute intent to tial or material decision-making factor in the taken); See, LeFevre, property owner must exist at time process. e.g., is 825 P.2d at 686- generally, see 3 R. (concluding 87 that the Wayne only victim "need LaFave, Substantive (2d ed.2003) ("In § 19.7(g) materially the resulting decep relied on the Criminal Law light tion"); Schneider, of the principle 441, basic criminal-law that State v. 148 Ariz. 715 297, physical the ("The mental and elements of the crime P.2d (Ariz.Ct.App.1986) 300 deceit coincide, knowledge must falsity offense, the of the of must be 'material' to constitute the the statement and the intent to defraud significant must the sense that it must be a factor in obtaining transaction”); Finch, coincide with the of the title to the the State v. 223 Kan. statutes) (cita 398, property” by deception 1048, (1978) (in in theft 573 P.2d 1052 a theft- omitted). tions by-deception prosecution, "the state must prove that the actually victim was deceived and relied in requirement, part upon whole or in deceptive that the the false This act be representation”). likely judgment one that is to affect the of the person, other is meant to test the rela tionship State, 169, between the defendant’s falsehood 19. See Garcia v. 669 S.W.2d 171 1984, and the decep ref’d) (defendant’s transaction to determine if (Tex.App.-Dallas pet falsehoods, all, tion exists. Some after giving are act of store clerk a stolen credit card likely provider's judg affect a service without pay ring intent to for affected the Only ment in the jury transaction. if the judgment finds giving ring clerk's during him a deceptive likely transaction). act that is to affect the the provider, of the service must it then reliance, i.e., consider whether there was State, 847, 20. See Huse v. 180 S.W.3d 850 person whether provided the other the service ref’d) ("[I]f (Tex.App.-Eastland pet. one deception. because of that act See State v. simply pays completed for a transaction with LeFevre, (Utah 825 P.2d Ct.App. 686 n. 9 check, an insufficient-funds no violation is 1992). hand, shown. prepays On other if one for services with that same [theft State, Swope 18. See 723 S.W.2d implicated. statute services] is The distinc- 1986), (Tex.App.-Austin grounds, ’don other tion vendor's reliance. The statute re- aff al- husband had ap- Bailey that that she her admitted State appeal, On allocated money that was ready spent by- service theft of not commit pellant did ex- personal the office renovations on Mr. check after writing a worthless the mon- Although they did have penses. Instead, his work. completed had at the ey pay building for the contract allegation suggests its State contract, they had signed time she being appel- act as alleged deceptive Mr. spent money all of before vari- an immaterial just bad check lant’s Thus, according to finished his work. The State ignored. which should be ance jury could have found have found jury could argues now impression— failed to correct a false she by decep- committed theft appellant money still had the she theory entirely an different tion under during Bailey per- Mr. the time contract — at a different deceptive act with a different part the contract.22 Under formed time.21 theft theory, appellant not commit de- theory, appellant’s this new at the time she entered into Under services Mr. Bailey,23 to tell Mr. contract with and she did act was that she failed ceptive ser- The secured quires proof appellant secured indictment act.”). deceptive Bailey's by deception by giving with a services vices trial, Bailey a worthless At check. argument fol- its as 21. The State summarizes Bailey's proved lows: by standing silently by Bailey performed Gollihar, evidentiary suffi- Under Malik contract, knowing spent she had under against the es- ciency should be measured with, money she intended to him elements the crime as defined sential by falsely reassuring him a week before jury charge. hypothetically correct that she had service charge hypothetically jury is one correct variations involve him. Both indictment, accurately that is based statutory language precisely the same the law out that is authorized sets theft-of-service offense. indictment, adequately the of- describes Brief at 19. State's fense, disregards are im- and variances that appellant 23.If the State had evidence that adopted two-part material under a test Bailey's pay intended to Mr. ser- never for Accurately setting the law out as Gollihar. vices, by requires specifically or that she knew that she authorized the indictment pay the list be able for services at when the indictment narrows would not to contract, statutory proving signed the the possible alternatives the time she offense, prove to "deception” bound the pled proven is have State could and regardless statutory alleges, 31.01(1)(E) alternative it Penal Code. under Section of the materiality_The only portion of the in- "deception” That section states that means prove specifi- dictment the State did not likely promising performance to af- that is cally the worthless check was that judgment in the transac- fect the of another Bailey’s al- performance. But this that the intend to tion and actor does not legation at at issue here was not perform performed, or knows will not be all, merely evidentiary.... Because the promise in except perform the failure to allegation al- not describe the issue did without evidence of intent or issue other prosecution, the State’s fail- lowable unit of knowledge proof that the is sufficient prove allegation ure to could perform knew the actor did not intend to or rendered the evidence insufficient. promise performed. would not be importance the State fails But to focus on 31.01(1)(E). § The evidence Code Tex. Penal alleging proving deceptive and criminal money appellant pay to relying it a crime act that Because on. signed at the time the contract she mind, guilty composed of a bad act and a paid deposit with that she the contractual and plead act” prove State must and the "bad did check is some evidence that she a valid relying it is on. the time she perform to the contract at intend sug- argues, signed. points evidence The State to no 22. The State when commit theft of services she wrote relevant that the pled State had one specif- complet- check after he had the worthless ic act of deception issuing worthless — Instead, according ed his work. to this jury check —and the returned verdict (1) theory, by failing she committed theft concerning specific Indeed, that one act. Mr. Bailey stop to tell work on the the jury charge contained a full page of already spent contract because she had dealing very specifically instructions personal funds allocated for his contract on checks, “insufficient funds” and the statu- (2) living expenses;24 reassuring and/or tory presumption of intent pay- avoid Mr. Bailey, the week before he was done 31.04(b) (c). ment set out in Section performance, with his would have she The State argues jury charge that the may pay But contract.25 ignored jury’s and the verdict could be proved pur- State neither nor pled these upheld by entirely evidence of different ported acts of deception. purported deception acts of at entirely dif- ferent times —ones that did not any involve According pled once it check. But even if indictment, our “immaterial “deception” word vari- ance” law further allowed such a dramatic description specific decep- variance indictment, lagniappe tive act was sheer and should be from the jury charge, and was, It ignored. argument, under this ir- proof, there is no evidence that Bailey Mr. gesting pay failing that she did not intend to for Mr. impression to correct a false of law (or Bailey’s services knew then that she likely judgment or fact that is to affect the transaction, pay) signed not be able to at the time she of another in the that the actor Indeed, investigator’s contract. previously D.A. testi- created or confirmed words conduct, mony always appellant acknowledged or and that the actor does not now debt, debt, agreed pay contractual believe is true. 31.01(1)(B). half of it is some evidence that she Under this Tex. Penal Code always theory, intended to the contractual debt appellant criminally could be liable therefore never intended to portion obtain Mr. for that of the service Mr. Bailey's paying performed services without for them. Daughertys after he had called the they fact that she could not this debt is not paid. assured him that he would be legally Perhaps sufficient to that she never in- Bailey might Mr. have testified that ("failure pay. perform tended to Id. concerning promise in issue without other evidence of his last week’s worth of construction services knowledge intent or Daughertys' is not sufficient was affected false reassur- perform that the actor did paid. not intend to ance that he would be But Mr. promise knew the performed.”). would not be question, was never asked that so we do not know what he would have said. And we do holding 24. This is like the homeowner crimi- the know value of that last week's worth nally failing liable for to tell the electric com- Furthermore, of service. under the terms of pany job that he lost and his won’t be able to contract, appellant the written did not owe pay the electric bill when it is due next Bailey any money beyond Mr. the initial de- month, company so the electric can turn off posit until and pro- unless he electricity before the bill is due. ject and occupancy. obtained the certificate of work, stopped might Had constitute 25. prove If the State had wanted to anticipatory that Mr. an breach of the contract on his event, Bailey completed part. his under the appellant's In whether as- Daughertys contract because the Bailey early July reas- surance to Mr. that he sured him the week paid before he was done that part would be when he finished they money perform have their the contract would be sufficient to establish contract, end pled the State could have an act of under the statute is not proven “deception” and under Section before us because there is no evidence that 31.01(1)(B). "decep- Bailey That section states that upon Mr. relied that assurance in com- tion” pleting means end of the contract. complet- provided The construction contract specific those acts upon

relied performance.26 completion to occur “on substantial was ing his contractual 7, (apx 5 weeks after about June with her contract breached Appellant However, building permit).” issuance money him the Bailey. She still owes Mr. Bailey approximately testified that that con- under promised that she a half after the con- passed month and of con- this routine civil breach tract. But city tract’s execution before the issued a rise to a criminal give case does tract begin and he the work. In permit could theft The court of services. conviction meantime, spent Appellant correctly that the evidence appeals held Bailey money that she intended to on appellant’s con- insufficient May 31, personal expenses. her own On viction. We therefore affirm 2008, had a Appellant’s bank account bal- appeals. of the court of $1,870.59. Thus, she did not ance pay Bailey in her account HERVEY, J., dissenting opinion filed a $15,000 owed, roughly but she did not in- KEASLER, JJ., MEYERS and in which Meanwhile, Bailey him of this. form hired joined. began thirty-day subcontractors HERVEY, J., dissenting opinion project. filed a construction KEASLER, JJ., MEYERS in which away When he was week from com- one joined. work, pleting Bailey Appellant called disposi- respectfully disagree I with have proper to make sure she would holds Today majority tion of this case. payment arranged by comple- the time of that there is insufficient evidence to tion, Appellant assured him that he by decep- Appellant committed theft paid. that Ap- would be Records showed majority ig- in so holding, tion. But pellant’s bank balance was only account key neglects nores evidence and $1,839.84 Bailey on June 2008. com- which ground upon granted we review. 3, 2008, pleted July the work on and then occupancy obtained certificate of from 16, 2008, April Appellant On entered City July of Frisco There Gary a construction Bai- into contract performed was no work on the contract ley newly to finish out rented office July contract, According after “$48,251 contract space. plus was for remaining balance owed for the ser- orders,” any approved change or minus due,2 arrangements vices was then so were Appellant’s agreed which the landlord made for to meet with $32,040.00.1 day On the the contract At executed, July and her husband on wrote a check for $1,657.00. Bailey meeting, Appellant gave two checks went to his bank on the day deposited completed, which to cover work one for same $15,871.00 for her of the cost portion cleared. and that, Appellant per 26. See Gibson 623 S.W.2d 330- testified their lease (ex agreement, pay portion a reh’g) landlord would (Tex.Crim.App.1981) (op. on remodeling building. work done to the plaining State theft-of- could not entirely services conviction an different provided pay- the final 2. The contract theory of than that which the State comple- ment "shall be made after substantial trial). proven pled and (Final city project inspec- tion of and CO tions).” 31.04(b)(2). another to cover her portion.3 landlord’s Bailey When did not Code Appellant testified that she was aware at payment, receive he referred the matter to time she wrote the cheeks that she had the hot check division of County the Collin them, cover insufficient funds to but that Attorney’s District Gary Office. Coch she wrote them because she “wanting rane, investigator an for the hot check [Bailey] to feel better about the situation” division, testified that Appellant worked and to believe that he be paid. with the D.A. to set up payment plan, and agreement, under the Appellant ad

Bailey that when attempted testified mitted knowing that she lacked funds $15,871.00 deposit to check several in the bank to cover the checks when later, she days he was informed his banker stated, wrote them.5 Cochrane pay there were insufficient funds to cover ment support, the check.4 records speaking Appellant paid After Appel- husband, $7,658.67 restitution, Bailey lant’s around in returned to the but when later, days bank three to four again and he she failed to appropriate make the paym learned that there were insufficient ent,6 funds Cochrane referred the case to the Bailey spoke cover the check. Appel- grand jury division. again lant and was assured that there Subsequently, Appellant was indicted for would be funds to cover the Bailey check. theft of services. The indictment then went to the bank a third time and that Appellant did was told that there were insufficient funds to cover the check. speaking After threat, deception, token, or false to- time, Appellant’s Bailey husband one final by issuing wit: passing was assured that the funds for the check when the defendant did not have suffi- of, being were taken care deposited and he cient deposit funds and on with the day, check. The next the cheek was bank for the payment in full of the check returned for insufficient funds. Bank rec- as well as all other checks then out- point ords revealed that at no May from standing, intentionally knowingly se- 31, 2008, through September Ap- 2008 did cure namely, of a pellant have sufficient funds her bank services, construction of the value of at $15,000 account to cover a check. least Fifteen Hundred Dollars ($1,500.00) Twenty but less than Thou- testified that he sent full, ($20,000,000), sand payment Gary demand for Dollars from August dated 5, 2008, Bailey, intending that included notice payment that failure to avoid days within ten presumption creates a knowing service and that the service an offense. See Tex. Penal committing provided only for compensation. eventually paid portion, The landlord signed so time I and issued those checks that I $15,871.00 charges pursued only were on the did not have sufficient funds in the bank to check. pay those checks...." trial Ap- record shows that 6.Appellant agreed payment to make a down Bank, pellant Compass both banked at $4,000 separate payments and three they used different branches. $3,992.00. However, when she made an ini- $3,500, payment plan agreement 5. The payment remaining shows that tial down following $4,158.67 initialed next to the lan- payments adjusted were each. guage: acknowledge "I admit and that I single payment $4158.67 made a of signed and issued all of the checks refer- making and payments. then ceased list, enced on the attached and I knew at the case, performed, except knows will not be trial, rested its the State At after promise failure to perform verdict of that moved for a directed there of intent grounds issue without other evidence guilty on not proof knowledge evidence to not sufficient or is insufficient Ap- by deception. per- were secured the actor not intend to services any, if deception, claimed pellant knew promise form or not were after the occurred performed. be 31.04(a)(1) thus, and, of Texas Section of jury guilty. The returned a verdict The was not violated as Penal Code year Appellant to one trial court sentenced Appel- The trial court denied charged. (probated years), two confinement motion. lant’s $8,317.33 restitution, 100 hours of commu- relied jury charge, the State In the an nity completion anti- deception con- statutory definitions of Appeals theft course. Dallas Court 31.01(1) of the in Section Texas tained judgment reversed trial court’s in- jury Accordingly, Penal Code. acquittal after judgment entered de- structed termining that the evidence was insuffi- “Deception” means: support Appellant’s cient conviction. (1) or creating confirming words 05-10-00832-CR, Daugherty No. of law or impression or conduct false *8, WL 2011 Tex.App. likely judg- that is to affect the fact (Tex.App.-Dallas Aug. LEXIS at *8 transaction, ment of another in the 2011) (not designated publication). and that actor does not believe to true; Court, appealed The State to this (2) failing impres- discretionary specifi- a false review to granted correct we likely or cally following sion of law fact that is address issue: judgment another in affect This Court held in v. State that Cada transaction, previously that the actor “immaterial law as set out in variance” or con- created or confirmed words specific to the apply Gollihar does not duct, that the actor not now does statutory the indict- elements true; believe to be happens ment. But what when alle- (3) from preventing acquiring another gation at issue is not a element judg- likely information to affect his part and not of the definitions of the transaction; ment originates offense but from another stat- (4) selling or transferring otherwise entirely? two-part ute Does Gollihar’s encumbering without dis- property or materiality apply? test for lien, interest, security ad- closing claim, Although granted we review on legal impediment or verse other law, which variance enjoyment property, ground, focuses on lien, interest, security majority gives whether minimal attention claim, valid, I impediment Maj. or is or not As will Op. is issue. See at 661-62. or or is a matter of official is critical explain, variance issue record; or the evidence determining whether here (5) sufficiency legal meets the standard —this promising performance whether must first determine there likely to affect the of anoth- Court allegations a variance between the er in the transaction and that the was offered at perform actor does intend to indictment and

665 243, State, wording 246 ance the v. 46 S.W.3d between the indict- trial. Gollihar presented ment and the evidence is fatal (Tex.Crim.App.2001). only prejudices if it material7 and sufficiency of the assessing legal In rights. defendant’s substantial Id. at conviction, we ana- a evidence “whether, evidence viewing Therefore, after lyze to determine evi- whether the prosecu- light standard, most favorable to the legal dence sufficiency meets tion, have any rational trier of fact could this Court must first determine whether the crime found the essential elements of variance allega- there was a between the beyond reasonable doubt.” Jackson indictment tions of the and the of- proof 307, 319, 2781, Gollihar, 443 Virginia, U.S. 99 S.Ct. fered at trial. 46 at 246. S.W.3d (1979). 560 “the 61 L.Ed.2d To determine case, In this specifically indictment crime,” we look essential elements of the alleged Appellant, “by deception, hypothetically charge jury correct threat, token, by issuing or false to-wit: State, case. Malik v. 953 S.W.2d for the when passing the defendant 234, hypo- The (Tex.Crim.App.1997). 240 did not sufficient funds in and on thetically jury correct one that charge is deposit payment with bank for the law, “accurately sets out the is authorized as full of the check well as all other checks indictment, by unnecessarily does not outstanding, then intentionally and know- proof the State’s burden increase ingly performance secure of a unnecessarily restrict theories State’s namely, construction services....” agree I liability, and adequately describes majority Appellant’s issuance offense for which defendant particular (alone), bad check as in the by Id. The law was tried.” as “authorized indictment, Bailey’s could have secured includes the ele- indictment” services because the check was written ments of offense “as modified until the services were rendered. See Cor- State, instrument.” charging Curry v. 30 State, (Tex. tez v. 582 S.W.2d 120-21 394, 404 (Tex.Crim.App.2000). S.W.3d Crim.App.1979) (“Obviously any deception hypothetically charge correct after the jury person occurs other has necessarily have all of completed performance obligations does not to track of his transaction, charging instrument’s in the allegations deception later —“a in- hypothetically charge incapable correct need not would be of affecting retrospec- allegations to im- corporate give tively already rise what he has Gollihar, completed.”); material variances.” 46 S.W.3d see also Gibson v. 623 added). (emphasis 256 variance A S.W.2d 329-31 (Tex.Crim.App.1981) case, however, when there be- In discrepancy (op. reh’g). occurs before, charging deception tween the instrument and there is evidence of long situation, In continuing through, at trial. such a “the State has of a the issuance crime, Cortez, proven guilty the defendant of a bad check. S.W.2d Cf. manner proven (holding has its commission in a there was no evidence allegations from the which the appellant varies A instrument.” Id. at vari- of the service when charging ond, assessing ques- prosecution materiality, In two we ask "whether under the defi- first, indictment, writ- tions: ten, "whether the ciently subject indictment drafted charge informed defendant of the being prosecuted defendant the risk of later against pre- sufficiently him to allow him for the same crime." Id. at 248 and, adequate pare an defense at trial” sec- 666 only one of those alleged The State the appel- that showed presented

evidence Thus, upon completion by deception. check means—theft a bad lant issued services). instant indict- Because the Ap required prove State was were the services secured ment stated “intentionally knowingly or secured pellant check, an funds issue insufficient with an by deception.” the service performance of other evi- to whether developed as has 31.04(a)(1). Although § the State used Id. by the State deception offered dence Section Texas Penal Code language from by deception, theft proof of sufficient 32.41(a) indictment, description in the a variance. creating thus an element of the statute not become recognized three differ- has merely descriptive This Court It was charged. The variance of variance. categories ent manner specifically pled averment category into the third case falls in this means, statutory not a and it was Johnson, respect that with in identified controlling statute alternative immaterial, non-statutory allegation.” “an State, v. 349 of service. Geick theft Cf. Johnson, at 299.8 It neither 364 S.W.3d 542, (Tex.Crim.App.2011) 547 S.W.3d statutory language de- to the refers was bound to (holding that the State nor involves non-statu- fines the offense9 alone, theft rather than by deception, theft allowable that describes an tory allegation narrow offense alleged when it the more in the Variance prosecution.10 unit of plead one of five by choosing specifically and, there- is immaterial category third that make consent possible circumstances fore, legally evidence not render the does ineffective). (“Variances Id. at 299 insufficient. material can never be because that which proved such as this And indeed the State an ‘entire- variance can never show such a prove: required it was al- than what was ly different offense’ per- “intentionally knowingly leged.”). by deception.” formance of the service 31.04(a)(1). The State Tex. Penal Code provides statute

The theft of services a continuum of ac- evidence of presented may the offense by means which several reflecting deception § 31.04. tions and events be committed. Tex. Penal Code when the indictment variance existed the variance John- 8. This Court identified alternative, category. belonging statutory third the victim was one son as There, witness,” charged defendant with of another "a but was offered by hitting causing bodily injury alternative, the victim the victim was ei arm, twisting it hand or her with his prospective or "an infor ther "a witness” threw the victim proved that the defendant State, mant”); v. 349 S.W.3d see Geick also wall, against caused her to break which (Tex.Crim.App.2011). 547-48 Johnson, at 293. We her arm. 364 S.W.3d that, variance did not because the determined 298; 10.Johnson, see, Byrd e.g., 364 S.W.3d at gravamen of the offense describe the focus or State, (Tex.Crim.App.2011). 242 v. 336 S.W.3d precise act or nature of conduct and "[t]he gravamina the crime of There are two inconsequen- result-oriented offense is this tial,” (the the owner- property theft or service and necessary the level it did not rise to ship), can be used to which combination material. Id. at 298. Variance prosecution. unit of determine the allowable and, therefore, category third is immaterial Johnson, at 297. The lan- 364 S.W.3d See legally insuffi- not render the evidence does neither describes guage at in this case issue cient. Id. ownership nor details the the services stolen 294; merely Johnson, see, It describes the the services stolen. e.g., 364 S.W.3d at Cada decep- Appellant committed which 768 means S.W.3d that a material tion. (Tex.Crim.App.2011)(holding (the “witness”) Appellant Bailey’s performance, to secure tive victim was a but of- majority which the downplays much of fered evidence of another alter- (the The completely ignores. issuance of the native victim a “potential was witness” “informant”), simply worthless check was the final act of or an the State in this case deception. early (ie., The State showed that as by theft of services (when May the construction work that Appellant secured of ser- just beginning) continuing by was and until vice deception) and then offered evi- trial, Appellant’s bank account never car- dence of the same. large enough ried a balance to cover the majority The contends that even if our $15,000 approximately promised under “immaterial variance” law allowed this var- contract; began the time work in indictment, iance from the the fact remains May earnest at the end of or the beginning that the State was still not able to June, she knew that she have beyond a reasonable doubt that Appellant the money pay to the contract but did not through any form of de- Bailey inform of such and continued to ception. Maj. See Op. at 661-62. But as spend money on her personal ex- previously, discussed the State did offer penses; and that a Bailey week before evidence Appellant’s actions could work, completed the construction Bailey Bailey’s judgment affected in render- called Appellant to ensure that she her ing Appellant promised services12— him, husband would have the money for the work before it Bailey was assured that he would be knew that she did not have sufficient paid. All of these acts occurred before funds, any point, at to follow through. is, services were complete, that before Bai- When the construction work just be- ley completed construction and then con- ginning, trial, continuing until Appel-

veyed the occupancy certificate of to Ap- lant’s bank account never carried a balance pellant.11 large enough to cover By the contract. The deception provided definitions of earnest, the time began work 31.01(1) Code, Section of the Texas Penal knew that she did money not have the here, except for one not relevant require pay the contract but did not inform that the deception Instead, “affect the of of such. she to spend continued another the transaction.” personal on her expenses. And Tex. Penal 31.01(1). § when, majority mistakenly a week before the construction was Code claims that the State failed to prove completed, Bailey called to en- such deception. Because services were sure that she and her husband would have outstanding still when the him, identified acts the money Appellant assured occurred, Appellant’s actions could have Bailey that he paid. would be All of these and, thus, affected the judgment acts occurred Bailey completed before the statutory satisfied decep- definitions of construction conveyed work and the certif- Therefore, tion. unlike Cada v. 334 icate of occupancy Appellant. Because 766, S.W.3d 768 (Tex.Crim.App.2011), in there were still services outstanding, Ap- which the pled State one statutory pellant’s alterna- actions could have affected Bai- disagree Therefore, 11. I Appellant’s argument deception. deceptive affecting acts Bailey's judgment services must have up been secured before could have occurred July April the contract until was executed on long unperformed, As as services were those remaining through services could be secured 31.01(1). § 12. Tex. Penal Code See rendering services. ley’s judgment 31.01(1). Therefore,

Tex. Penal Code found of fact could have trier

reasonable beyond of deception element

the essential Jackson, 443 U.S. doubt. reasonable 99 S.Ct. conclusion, although there exists

In charging instrument

variance between trial, the variance proven what was immaterial, non-statutory alle-

involves an Moreover, legally evidence

gation. Appellant’s conviction.

sufficient reasons, respectfully I dissent.

For these CANIDA,

Bobby Glenn Texas, Appellee.

The STATE

No. 06-11-00227-CR. Texas, Appeals

Court

Texarkana. Sept.

Submitted: Nov.

Decided:

Case Details

Case Name: Daugherty, Tonya Jean

Court Name: Court of Criminal Appeals of Texas

Date Published: Jan 9, 2013

Citation: 387 S.W.3d 654

Docket Number: PD-1717-11

Court Abbreviation: Tex. Crim. App.