Larry Curtis ROWLAND, Appellant, v. The STATE of Texas, Appellee.
No. 303-86.
Court of Criminal Appeals of Texas, En Banc.
Feb. 10, 1988.
744 S.W.2d 610
In this instance, the Commissioners Court of Eastland County has never defended relator‘s application for the writ of mandamus on the ground that the $17,010.00 ordered by the trial judge to be paid to relator was an unreasonable attorney‘s fee for the services he performed after he was court aрpointed.
Given the state of the record before us, this Court should issue the writ of mandamus. To the failure of this Court to do its duty and issue the writ, I must, but respectfully, dissent.
APPENDIX A
The State of Texas
vs.
Brenda Gail (Perry) Andrews
No. 17,184
In the District Court
of
Eastland County, Texas
ORDER
The foregoing Application having come on to be considered by the Court, the Court finds that the facts set forth therein are true and correct and that said Application has merit, and that it should be granted;
THEREFORE, it is ADJUDGED, ORDERED AND DECREED that the Application is approved and it is the further ORDER of the Court that the Honorable Commissioners Court of Eastland County, State of Texas, promptly pay GEORGE GRAY, court-appointed attorney for the indigent defendant, BRENDA GAIL (PERRY) ANDREWS, the sum of $17,010.00 for said attorney‘s legal services rendered said defendant to date in the above-captioned and numbered cause.
Approved this 15 day of April, 1987.
APR 22 1987
/s/ Claude Williams
JUDGE PRESIDING
Weldon S. Copeland, Plano, for appellant.
Steve W. Simmons, Dist. Atty. and Robert Dinsmoor, Asst. Dist. Atty., El Paso, Robert Huttash, State‘s Atty., Austin, for State.
TEAGUE, Judge.
Appellant, Larry Curtis Rowland, was charged and found guilty of the offense of theft of an automobile. The El Paso court of appeals found the evidence insufficient to support a conviction for theft and entered a judgment of acquittal. Rowland v. State, 704 S.W.2d 150 (Tex.App.-El Paso 1986). We granted the State‘s petition for discretionary review to review that holding. We will reverse the judgment of the court of appeals and affirm the trial court‘s judgment.
The record reflects that Manuel Hernandez, the complainant, owned a construction business in El Paso. Appellant worked for Hernandez for several weeks but was terminated because Hernandez’ business had slacked off. On Christmas Eve, appellant came to Hernandez and told him that he had the opportunity to do tempоrary painting work, but needed a truck to complete the job. Hernandez agreed to loan his truck to appellant on the condition that appellant return the truck within three days, which was the length of time appellant claimed he needed the truck. Appellant, however, did not return the truck-at all.
Sometime thereafter Hernandez learned that appellant misled him into loaning him his truck. Hernandez testified, without objection, that he contacted the individuals for whom appellant claimed to be painting, only to learn that they had not entered into such an agreement with appellant.1 Appellant never returned the truck, and Hernandez never saw or heard from appellant again, until he saw him in court on this case.
Nine days after thе truck was supposed to be returned, Hernandez notified the police. Approximately one month later a wrecker service notified Hernandez that it had picked up his truck in El Paso. When he went to retrieve his truck, Hernandez found it had been stripрed of the battery, the jack, the spare tire, the alternator and Hernandez’ tools which he had placed in the truck.
The indictment upon which appellant was convicted alleged in pertinent part that “on or about the 27th day of December, One Thousand Nine Hundred and Eighty-three . . . [he] did then and there unlawfully, intentionally and knowingly appropriate, by acquiring and otherwise exercising control over, property other than real property, to-wit: one (1) GMC Pick-up Truck of the value of over $750.00 but less than $20,000, from MANUEL HERNANDEZ, without the effective consent of the owner, MANUEL HERNANDEZ, and with intent to deprive the said owner of said property.” Appellant did not file a motion to quash the indictment, nor did he orally claim a lack of
The indictment alleged the offense of theft, as set out in
The jury was in part instructed that “A persоn commits the offense of theft if he unlawfully appropriates property with intent to deprive the owner of property. Appropriation of property is unlawful if it is without the owner‘s effective consent. The term ‘effective consent’ includеs consent by a person legally authorized to act for the owner. Consent is not effective if induced by deception or coercion . . .” Appellant did not object to the charge nor did he request that the statutory definitions for the word “decеption” be included in the charge.2
Appellant argues that the evidence is insufficient to prove he deprived Hernandez of his vehicle. To support this conclusion, appellant points to
We find that the State correctly asserts that to prove what it alleged, it need not prove actual deprivation; only that appellant intended to deprive Hernandez of his truck.
The court of appeals decision cites two ways the evidence can show intent to deprive. Both ways, however, are examples of actual deprivation.
First, the court of appeals indicates that the State could establish intent to deprivе by showing actual deprivation where a defendant withholds property permanently or for so long that the owner loses a greater part of its value or enjoyment. Rowland, supra, at 151. This is a paraphrase of the statutory definition of “deprive” as found in
Thе court of appeals next indicates that the State could prove intent to deprive by showing actual deprivation where a defendant disposed of the property in such a manner that makes recovery of the property by the оwner unlikely. This is another statutory definition of “deprive” found at
Deprivation is not an element of intent to deprive; thеrefore, the State need not prove actual deprivation in order to prove intent to deprive. While evidence of actual deprivation may be evidence of intent to deprive, other evidence may also indicate whether intent to deprive exists. We find that the court of appeals too narrowly limited its analysis of the record in determining whether evidence of intent to deprive exists.
To determine whether the evidence is sufficient to support a conviction thаt appellant intended to deprive Hernandez of his truck, we are required to view all
One example of evidence that appellant intended to deprive Hernandez of his truck can be inferred from the fact that appellant did not return the truck to Hernandez as he had promised, within three days; in fact, he never returned the truck at all and he never contacted Hernandez to offer аn explanation. Moreover, the circumstances surrounding the way appellant obtained the truck constitutes evidence that appellant had the requisite intent to deprive. Appellant deceived Hernandez into letting him have his truck by falsely telling Hernandez that he needed the truck to complete a painting job. Hernandez testified without objection that he checked with the individuals for whom appellant claimed to be working, only to learn that no such working arrangement existed. From this, thе jury could have inferred that when appellant obtained Hernandez’ truck, he unlawfully appropriated the truck. While unlawful appropriation of property does not alone prove intent to deprive the owner of the propеrty, it could be construed by the trier of fact to constitute circumstantial evidence of intent to deprive.
We find that any rational trier of fact could find appellant guilty beyond a reasonable doubt of theft by deception. See Jackson v. Virginia, supra; Mosley v. State, 686 S.W.2d 180 (Tex.Crim.App.1985); Meanes v. State, 668 S.W.2d 366 (Tex.Crim.App.1983).
The court of appeals erred in reversing the trial court‘s judgment of conviction. The judgment of the court of appeals is reversed and the judgment of the trial court is affirmed.
CLINTON, Judge, dissenting.
The El Paso Court of Appeals addressed only appellant‘s first point of error: thаt the evidence is insufficient to sustain the verdict of the jury and a judgment of conviction under the State‘s theory of the case. Finding the State failed to prove that appellant intended to deprive the owner of his pickup for so long that the ownеr lost a greater part of its value, the court of appeals reversed and remanded to the trial court for entry of a judgment of acquittal. Rowland v. State, 704 S.W.2d 150 (Tex.App.-El Paso 1986).
In seeking discretionary review the State presented a single ground for review, viz:
“Whether the Eighth Court of Appeals has so far departed from the accepted and usual course of judicial proceedings by finding that the State in order to prove theft of property, must prove an accused [withholds] the property permanently or for so long that the owner loses a greater part of its value or enjoyment’ in order to prove that the accused intended to deprive the owner of the property.”
PDR, p. 1 (original emphasis by the State).
In other words, the State makes a straightforward contention of law that the court of appeals required proof of actual deprivation to show intent to deprive. Nothing else.1
For the majority, Judge Teague finds, inter alia, that there is merit to the ground for review, that the court of appeals erred in requiring proof of actual deprivation. At 612-613. Having done that, thе Court has decided the only issue presented by the ground for review; it has exercised its power of discretionary review.
Moreover, given the reason we granted review, that the El Paso Court have that opportunity is even more appropriate.
Therefore, I would vacate the judgment of the El Paso Court of Appeals and remand the cause tо that court for it to reconsider the first point of error in light of the appellate error we have found. Because the majority does not, I respectfully dissent.
MILLER, CAMPBELL and DUNCAN, JJ., join in this opinion.