*1 SOWDERS, Appellant, Jean Verna Texas, Appellee.
The STATE of
No. 1041-83. Texas, Appeals Criminal
En Banc. Hunt, Waco, appellant.
Russell D. Sehon, Atty., Marlin, B. Thomas Dist. Huttash, Austin, Atty., Robert the State.
OPINION ON APPELLANT’S PETITION FOR REVIEW DISCRETIONARY WHITE, Judge. appeal
This is an from a conviction for V.T.C.A., Section theft under Penal Code finding appellant 31.03. after guilty, punishment assessed two Depart- years’ confinement in the Texas $1,000.00 fine, ment of Corrections and a probated. appeal both First, grounds raised two of error. insufficiently lant Marilyn was the owner Secondly, appel- appellant. stolen provide did not guilt evidence sufficient to establish Waco, in Appeals The 10th Court of ap- opinion, both of unpublished overruled error, grounds and affirmed pellant’s the conviction. petition for dis- granted appellant’s
We review the Court cretionary to examine *2 all ly received was decision that the trial court Appeals’ grant appellant’s County it did and it in the when correct on the for a directed verdict based motion Depository.2 al- ownership, as prove failure to appellant’s The State called co-workers leged in the indictment. testify from the Falls Tax Office clerk title employed was as the testified, under eight at trial. All women Asses- County Tax in the office of the Falls oath, any money they that did not remove inde- In March of sor-Collector.1 appellant’s cash drawer. Of from the Parrish, Sr., auditor,
pendent
Mr. William
women,
counsel of-
eight
these
defense
Parr-
County Tax Office.
the Falls
audited
Henderson,
one,
as an
only
Mary Jo
fered
that he discovered
testified at trial
ish
indicated
suspect. The evidence
alternative
ap-
under
shortage
the drawer
resigned from
Ms. Henderson
that after
of this audit
As a result
pellant’s control.
County Tax Office
Omitting the
appellant was indicted.
appellant’s cash
shortages
cash
alleged that on
the indictment
parts,
formal
appellant admitted
occurred. The
drawer
3, 1982,
appellant
did:
or about
short-
making up for the cash
that she was
intentionally
unlawfully,
and
“...
writing
every
month
ages in her drawer
knowingly appropriate property other
County, and in-
personal
check to Falls
property,
Marilyn
than real
receipts for that month.
cluding it with her
County, Tex-
County Treasurer of Falls
mon-
However, appellant
taking the
denied
as,
thereof,
the owner
who
of her co-workers
ey
suggested
that all
property
of the
defendant,
access to her cash drawer.
ac- had
and the defendant
namely:
quired
property,
over the
control
called the Vice-President
The State
THREE HUN-
SEVEN THOUSAND
concerning the
testify
appellant’s bank
and 6/100 DOLLARS
DRED ELEVEN
money that were
levels of
($7,311.06),
Currency,
in United States
during the time of the
bank account
two
dollars
all
the value
hundred
that
testified
thefts. The Vice-President
less than ten
or more
thousand
time,
made several
appellant
during that
dollars,
the effective consent of
without
deposits in her bank account.
large
the said owner in that
the defendant
County Auditor to
called the Falls
from the
no consent of
kind
received
salary at that
about
to act for
anyone
owner or
authorized
that
time. The evidence indicated
acquire control over the
the owner to
$1,000
re-
(and
gift she
salary
lant’s
the defendant so ac-
property,
said
ceived)
large
de-
account for
could not
property
quired control over
said
being indicted
posits. Prior to her
deprive
the said owner
with the intent
told Ms. Henderson
property.
...”
of the said
a cash short-
month to cover
she used one
Ejem testi-
During
Marilyn
the trial Mrs.
drop in the
“a
age in her drawer
the owner of
she was
fied
had taken
compared to what she
bucket”
$7,311.06,
alleged in
indictment.
charge to
In the
cash drawer.
from her
permis-
giving appellant
denied ever
She
court instructed them
the trial
belonging
any money
sion to take
circumstantial evidence.
that she
County and also testified
eventual-
may
venue,
re-
as the Commissioners
change
tried in
manner
After a
1.
direct,
with constituted
quire or
not inconsistent
Limestone
may provide funds for ade-
court
law. Said
custodian of
as chief
"The
proper media that would
quate personnel and
finance,
moneys belong-
all
shall receive
perform
constituted
such
the treasurer
enable
ing
from whatever source
perform
duties
Upon
such
failure to
duties.
derived; keep
for the same
may
and account
be
duty
guilty
of dereliction
treasurer shall
depository
depositories; and
designated
in a
1709, V.A.C.S.
subject
prosecution.” Art.
same,
pay
in such
apply or disburse the
only prove
need
that the value of
agree
appellant’s conten-
We do not
satisfy
was sufficient to
tion that the State was bound
range
pled.
Bergman
of value that
$7,311.06 belonged
Ejem.
It
to Mrs.
all
(Tex.Cr.App.1963),
for the
was sufficient
pled
that the value
belonged
only more than
to Mrs.
*3
However,
proof
the
stolen was $52.96.
Ejem.
stolen. This
only
trial was that
was
$50.00
prove
The
at trial that
State must
im-
“was
Court decided that this variance
money
amount
stolen satisfies the
the
of
or more
material.
of $50.00
Proof of value
requirement
the
jurisdictional
State, 632
Wiley
is sufficient.”
In
v.
pleading.
example,
For
if a defendant is
the
al-
(Tex.Cr.App.1982),
State
S.W.2d 746
theft,
third-degree felony
charged with a
firearms,
the value of
leged that
several
the value of
only prove
need
that
State
by the defendant.
over
were stolen
$200.00, and
property
stolen was over
prove that all
The State did not
$10,000.00.3 In Nitcholas v.
less than
firearms,
indict-
alleged in the
which were
State,
(Tex.Cr.App.1975),
ment,
showed
were stolen. But the State
principle
this
and its
this Court discussed
firearms,
which
that the value of the
State,
origins.
In
98 Tex.Cr.R.
Houston
stolen,
over
proved
$200.00.
were
was
280,
(1924),
ruled
came to her each month from each of the superior funds county government offices which collected argues revenue, including possession, failed to or owner- Tax Office. She would then it in ship, of the Falls revenue had actu- County Depository. V.A. ally passed Ejem. Appellant to Mrs. be- C.S., grants to Treasurer au- long lieves that so as the was stolen thority over funds. Office, from the Tax Assessor-Collector’s Ejem before it reached Mrs. or the
Appellant also asserts that the State
Depository,
Ejem
could not have
must
that Mrs.
was the exclu
*4
possessed
owned
money.
or
the
We dis-
sive owner of the county revenue that was
agree.
State,
Sharpe
The case of
648
disagree.
stolen. We
It
sufficient
(Tex.Cr.App.1983)supports
S.W.2d 705
the
State to
Ejem
that Mrs.
was a
Sharpe, supra,
conclusion. In
the defend-
special
case,
owner.
In the instant
the
ant allegedly stole
from a store
$110.00
State needed
Ejem
to
that Mrs.
owner, Troy Davis. Mr. Arnett Lee went
greater
possession
to
of the Falls
to Davis’ store to
paycheck
cash his
County
revenue than the
purchase some scotch and beer. Lee en-
When an entity,
county
such as a
dorsed his check and
it to Davis.
government
corporation,
or a
is the owner
Davis laid the check on
register,
count-
stolen,
which has been
it is
placed
ed out
$152.00
proper
allege
to
a
person,
natural
who acts
the counter.
pick
up,
Before Lee could
it
county
corporation,
or the
is the
defendant, Sharpe, grabbed
$110.00
property.
owner of the
State,
Compton v.
it and fled. The
alleged
Davis was
Mrs. received all 6675a-l, revenue for seq.). cle et place her to in the County Depository. appellant’s In March of 1982 an audit of county’s pos- Once the revenue was in the $7,311.06, shortage of “drawer” revealed a session, Ejem’s right possess, appropri- the amount to have been control, the revenue was invoked. Within ated from Treasurer. county government, structure of figure the amount This constitutes Ejem’s right possess the revenue as receipts for sales tax which the total of the Treasurer was than the drawer, registration fees in appellant’s right possess the revenue as 152.064(a)(3), Code, ex- see Tax V.T.C.A. a title clerk in the Tax Office. reflected as and checks ceeded the cash though Even may not have receipts. Appellant testi- payment in those specifically broken down each portion of prac- engaged fied that she had indeed the fee to be received Palls County, the i.e., holding out re- “lapping,” tice of record does show that the total monies ceipts up to cover cash from week week drawer which be- insisted shortages in her but she longed was over the value of shortages themselves were not of two hundred dollars and thus Mrs. doing. produced circumstantial was the owner of this amount. evidence to the effect *5 responsible taking money from judgment The of the Court Appeals of is drawer. affirmed. appeals In her the court of brief to complained matter of law the that as a CLINTON, Judge, dissenting. owner, treasurer, county alleged could greater right possession not have had a Though precisely developed as a fac- $7,311.06 taken from her record, of all of the apparent in it is tual matter contended, so, because in- This is she major aspect appellant’s job that a of drawer. the monies point sales at the in time at which the collection of motor vehicle volved (which pro- some at the time and were in her tax is to be collected earmarked for application county portion is made to the tax asses- of the revenue was coffers, by registration county or for stat- sor-collector for vehicle State rather than 152.121;1 title, Code, Code, Tax a certificate of see V.T.C.A. Tax ute. See V.T.C.A. § 152.041(a) (b)), and various motor and To these reve- Article 6675a-10.2 § 1, 152.121(a) (b) the time the offense was amend- 1983. At and have been 1. Sections however, read, committed, 456, 93, 13, ed, 1983, provision in rele- Leg., p. § ch. see Acts 68th 1, 1983; 1983, part: vant September Acts 68th effective Leg., 1360, 280, 1, County September Monday p. effective week each Tax § ch. "On of each 3, 1982, 1, 1983, County Deposito- the date shall in the but as of March Collector ry indictment, credit of the of his to the read: equal Fund an amount Road and month, "(a) day the 10th of each (100%) percent net collections one hundred shall send 95 tax assessor-collector registration] license fees for motor [of taxes percent collected from during preceding the amount week until Chapter imposed by Sales Vehicle this [Motor year deposited calendar for the current so Comptroller. to the Tax] Fifty sum of Thou- reached a total shall have (b) shall tax assessor-collector ($50,000.). Dollars sand and No/100 percent under of the taxes collected retain 5 Thereafter, deposit- amount so and until the paid Chapter into of office or as fees year reached a total shall have ed for pro- salary the officers’ fund of Seventy-Five Thousand and One Hundred by general law.” vided ($175,000.00) deposit to the he shall Dollars Monday since week been amended of each 2. Article 6675a-10 has also of said Fund on credit 1981, 473, (50%) 3, 1982, fifty percent Leg., p. equal 67th see Acts an amount 1982; 1983, during pre- 1, 1, 203, made hereunder Acts collections ceding ch. effective § 3, Sep- week. Leg., p. effective ch. 68th missing from of the Trea- least $200.00 nues she contended Falls her drawer. possession or claim of had no surer whatsoever; trea-
ownership therefore the disposes in a majority of this claim footnote, could not have had a surer 5). (at Using n. the break- full possession to the paid receipts contained in the sum- down of $7,311.06 allegedly taken. report, auditor’s which in mary of the evidence, majority applies statutory appellant: Concluded schemes, 2, ante, see nn. to conclude por- failed “The State of the least monies ulti- missing of the funds would tion belonged drawer that-emy mately belong County, county. quarrel I have no with the Court’s ultimately belong to of the funds would methodology arriving in or arithmetic Falls and that at least $200.00 merely point I out that this amount. would belong to ultimately the funds would ingenious while the raw data for this calcu- County. The failure to record, in lation was contained jurisdictional amount is fatal prove the before the the statutes were not. [Emphasis grounds for reversal.” Simply put, posi- the factfinder was no original.] perform tion to the calculation the Court dispositive. now finds appeals disposed The court of contention, summarily, my lant’s jury ques- What before the on the view, erroneously, thus: testimony tion of is the owner, “The record reflects that entirety Treasurer. The of her fiscally office accounted to and chan- “ownership” relative to her
neled funds the treasurer. See funds was: Art. 1709. Tex.Civ.Stat. “Q: major what is the function of And Right right to ac means office, your Ejem? care, custody, manage
tual control or *6 A: I receive all the 1.07(a)(28); Compton ment. TPC Sec. Ct.Crim.Appls, 607 S.W.2d County Depository.
cert. denied U.S. S.Ct. [450 997] L.Ed.2d Proof of to ex Q: you money do receive [68 197]. And who all necessary clusive is not to es from? ownership.
tablish Turner v. Ct. offices in the A: All the different 189; Crim.Appls, Compton, 636 S.W.2d report makes a at the end supra. The sup evidence is sufficient to money of each month and turns the port finding ownership.” on over to me. Q: [appellant’s employer,] And does principles by relied on abstract the Falls Tax Office also bearing appeals simply court of have no on you it turn its monies over to appellant’s contention. does collects? argue a failure exclu- State to jur- of at least sive has an The Tax Office—each office A: Rather, amount. she asserts de- isdictional account of their own money in account posit failed to establish their make end of the month county in at and at the any ownership interest Highway Depart- ceeding depos- to the State make further week Thereafter he shall no copies together each during with carbon ment its to the credit of said Fund during receipt year. during issued hereunder made license calendar All collections preceding provisions week.” week under the of this Act 4.202, for- required deposit- the amounts See excess of 6675a-ll, provides merly ARticle the Road and Fund ed to the credit of compensation for each Coun- tax assessor-collector of his ty shall remitted relating registration. Monday of the suc- services Tax Collector on each portion to me report, missing write checks back funds was ear- reports. County,3 Ejem to cover those marked for Falls was not asked, likely nor is it she could sup- have higher Q: up you So are the one next plied, portion what that was. scale, right? is that [Emphasis supplied.] compelled A: Yes.” For these I am reasons agree with contention that the that she Ejem went on no State failed proving Ejem its burden of $7,311.06from permission to take one special was the by virtue of her owner 1982. County on about office as county treasurer least following exchange crossexamination occurred: lant’s drawer. I judg- would reverse the “Q: Okay. you person- Do your own ment of the appeals court of and remand knowledge al know where that the cause for entry acquittal. of an order of from, instance, came you do know whether the MILLER, JJ., join. came from cash TEAGUE and account,
drawer or from a bank do
you personal know your that from
knowledge? I Only pa-
A: what read in the hear,
per or that is all.
Q: your personal knowledge So of own
you wouldn’t know that? No, A: sir. SWEETEN, Appellant, Charles Edmond Q: you particular don’t So know what
group of money we are even talk- about, ing a fair statement— Texas, Appellee. The STATE of Yes, sir. A: 64087, 64088. Nos. Q: knowledge? your personal —of own Texas, Appeals of Criminal Yes, A: sir.” En Banc. Treasurer That higher up one next on the scale” in “the channelling “belonging
terms of monies County” nothing does to establish *7 proportion of the
what of the tax assessor-col- go ultimately
lector would county deposi-
treasurer clear did not know
tory. It is from, much less
where the monies came authority the specific statutory miss-
what she
ing amount collected. In fact did testify
not be- Thus, argu- while
longed competent
ably she witness permission no one take whatever Sep delivered State, (Tex.Cr.App., No. 3. Whether suffice estab rehearing pend treasurer, (Motion "special 1984) lish Dingier analysis, urge a owner" of monies located in the tax ing). does doubtful assessor-collector's office seems light however. Judge Teague’s Dingler opinion