*1 involuntary issue of intoxication submitted jury.
Finally we request observe that the charge
ed submitted charge
not a correct on the law as outlined request
аbove. This bring was sufficient to complained omission toof the trial attention,
court’s and is thus sufficient to
preserve the error for our review. v. Stiles 894; Tex.Cr.App., Art. 520 S.W.2d
36.15, V.A.C.C.P.
We hold that the trial court erred
failing charge the affirma-
tive involuntary defense of intoxication. is reversed and the cause
remanded. Martinez,
Penni STONER and Alex
Appellant, Texas, Appellee.
The STATE of
No. 56406.
Court of Appeals Criminal
Panel No. 3. 18,
July 1979.
Rehearing Sept. En Banc Denied
751 OPINION DALLY, Judge. tried,
Appellants indicted, jointly having theft of property convicted for $10,- a value more of but less than $200 for each Punishment imprisonment years, assessed at for two probated.
Appellants contend that the indictment is defective, fundamentally that there ais fa- tal variance between indictment and proof, the evidence is insufficient to sustain convictions, prosecutor engaged in improper argu- ment. alleges appel
lants,
11, 1975,
on or
about
“.
.
deprive
with
intent to
owner,
of
property,
of
namely,
pound
NeKoosa offsеt
paper,
knowingly
Vellum
did
and inten-
tionally,
without
owner’s effective
consent, unlawfully obtain and exercise
(control
obtain)
control over
over and
property
such
which had
value of more
($200.00)
than two
dollars
hundred
($10,000.00)
less
dollars
than ten thousand
Appellants
quash
no motion to
filed
However,
indictment.
contend
fundamentally
the indictment
defective
allege
becausе it does
not
21.09,
paper stolen, citing Art.
V.A.C.C.P.
(Tex.
In Rhodes v.
On Martinez and Martinez had known that for, subsequently State, large financially responsible. was to be print shop for the Senate After the newsletters had been delivered, from Paper the Lone Co. of Austin Star Martinez called Castruita (Lone Star). A.M.P., Included in this order was told him to bill not the $1,200.00 approximately 10, 1975, Whitley sixty printing. July worth of blue On $1,165.00 There receivеd a check for in out the owner’s effective consent. Andujar newsletters. The check exercised can be no doubt that Martinez signed by question: “Penni J. he or- control over the stored, Arts.” and he had it dered he had it Andujar Whitley for use in the delivered Martinez testified that he had had noth- Martinez exercise this newsletters. But did ing to do with the solicitation of bids effective con- control without the State’s awarding newsletters or in sent, depriving and with the intent job A.M.P., and offered evidence that he paper? State of the was in days Dallas on the He question. also testified that he did not print shop, As of the Senate give Whitley job the news- e., authority, i. the con- Martinez had the letters, and that he did not Cook to instruct sent of the to award A.M.P. deliver to Whitley paper owned Andujar newsletters contract to *4 State. Martinez testified that he had had pa- and to on have the newsletters arrangement an whereby paper with Cook per by owned But when he the State. by owned the State and stored in Lone paper ordered Lone to Star to deliver Star’s warehouse by could be sold Lone Star Whitley newslet- Whitley print to payment creditеd to the Senate paper, knowing ters on that he did that as print shop’s account. print speci- the contract to the newsletters paper supplied by fied to be was testimony, In her Stoner also stated that printer, scope he exceeded the of his Martinez had had nothing to do with A.M.P. authority. The never authorized State getting the Andujar contract for the news- paper Martinez to use State-owned Moreover, letters. she, she testified that private gain of himself or others. Martinez, not had called Castruita and ar- ranged Whitley print to the newsletters If Martinez and had contrived to Stoner subcontractor, she, as a and that not Mar- paper carry print- use State-owned to out a tinez, had called Cook and ordered thаt ing contract A.M.P. and some third between paper be delivered to She stated party, there can be no that such use doubt that she did paper not know that the deliv- paper effective would be without the Whitley ered to belonged only consent of the State. The difference that she fully expected had to be billed for .between hypothetical situation and paper by Lone Star. actually what con- occurred that A.M.P.’s tract was with the But the fact that State.
Appellants contend that there is a A.M.P., acting through intended to fatal variance between the paper sell the back to the does not State evidence, the State’s since the evidence alter the character of Martinez’s conduct. property shows that the stolen was When Martinez to paper had the delivered While certainly it is true that Whitley pursuant to scheme with Ston- his objective the ultimate was to appellants er, he his authori- scope acted outside the money steal from the the method ty shop. of the Senate chosen objective to achieve this to sell Or, expressed in the the theft terms of to already which the State statute, Martinez acted the effec- without question owned. The to be answered is tive whether, consent of the State. carrying in the course of out their scheme, appellants stole the from the prove The evidence is sufficient also State. deprive that appellants intended to by paper. The bid submitted
Appellаnts were State of the indicted under V.T.C.A. Code, 31.03, accepted by included prior Penal A.M.P. and Martinez Sec. as it read its section, used for amendment in 1975. the cost of the to be Under that newsletters, had the guilty if, but in fact Martinez of theft with intent to al- deprive property, the owner of he newsletters obtained ready exercised control over the with- owned. The State recеipt A.M.P. on the basis of the contract entered which is in evidence. Castruita tes- Martinez, by including into the cost of the Whitley Andujar tified that printed the paper. This evidence is sufficient to newsletters on the blue 'NeKoo- that Martinez and exercised control Stoner sa offset vellum delivered Lone Star. over the with the State’s intent We hold that this evidence is sufficient to restorе the compensa- was, establish that as al- tion to A.M.P. by the Penal State. V.T.C.A. leged, NeKoosa offset vel- Code, 31.01(3)(B).1 Sec. lum. Code, 31.03, V.T.C.A. Penal Sec. is much Finally, appellants contend that the trial previous broader than theft statutes. refusing jury court erred in to instruct 31.03, enacting legislature supra, Sec. disregard argument improper jury intended to range consolidate a broad prosecutor. prosecutor the fol- made offenses, including theft-related embezzle- lowing statement with reference to the ment, receiving concealing embezzled Andujar newsletter written bids for property, swindling, and conversion contract: bailee, single into the offense of theft. “. I going am to mark this so Code, V.T.C.A. Penal Sec. 31.02. While un- you go when room I want der the facts of appellants this case certain- at people each one of twelve to look ly could prosecuted have been for the theft it the bids on carefully: You remember of the money they pursuant received is the newsletter. This bid scheme, 31.03, supraj Sec. is broad Company typed in Whitley *5 enough encompass the theft of the there; Best there is the bid from the as well. Under the presented facts very Printing Company written in there appellants could have been convicted of the here is the bid clearly longhand; now theft of either or the by Penni from A.M.P. Arts Ston- not both. there, er, you see on folks? and what do We hold that the evidence is sufficient to $2,334 originally in Penni The bid was sustain the appellants par- convictions of as handwriting, and then in some- Stoner’s ties to the theft of State-owned changed to handwriting one else’s it was ground This of error is overruled. two thousand two hundred— Honor, that is a “MR. PALMER: Your Appellants contend that misstatement, complete the rec- outside failed to that stolen was to hand- testimony ord—there is no sixty pound NeKoosa offset vellum as writing— They in the indictment. base this contention on their cross-examination of “THE before COURT: Come who, Cook when shown one of the Bench.
newsletters, testified that the resem (A conference had at the Bench bled NeKoosa offset but that he could not reporter. out of hearing of the positively state that it was. My objection, “MR. Your PALMER. Honor, Attorney is is that the District undisputed portion
It is of the is no arguing outside the record. There May ordered on 30 for the Senate testimony to whose hand- in the record as print shop was blue NeKoosa exhibit, writing appears nor is offset vellum. Cook testified that at Mar- any any ex- testimony qualified there tinez’s direction Lone delivered a Star pert any person that one hand- of this blue NeKoosa any other hand- testimony writing offset vellum to Cook’s is different from therefore, delivery I ask the Court writing; is corroborated Lone Star Code, “(B) property only upon 31.01(3), pay- Penal reads in restore V.T.C.A. Sec. ” pertinent part, compensation as follows: ment of reward or other “(3) ‘Deprive’means:
755 to instruct disregard take the evidence testimony from the argument. exhibits, appellants requested no further re- “THE gentlemen COURT: Ladies and State, (Tex. lief. Rеese v. 531 638 S.W.2d of the jury, you are to take the evidence 1976); State, Cr.App. Johnson 510 S.W.2d from the witness stand and from the ex- 1974); State, (Tex.Cr.App. 944 Nevarez v. hibits admitted you. in evidence before 1974). (Tex.Cr.App. The S.W.2d “MR. right. SHEPPARD: That’s error, any, properly preserved. if was not asking What I am you to do is to look at The is affirmed. bid, look at how Penni Stoner makes up her ‘2’ here and look at the first ‘2’ in
there, and then look at ‘2’ CLINTON, Judge, dissenting. marked see, over the ‘3’ and will I case, The indictment in this its material think, from the evidence that it is a dif- parts quoted Court, opinion ferent handwriting. your You can draw awkwardly alleges an offense of theft of own conclusions. Reducing that bid underlying the described undis- one hundred dollars makes it the lowest puted facts, however, do not show a theft of bid six posi- dollars. was in Whо and, any commonly accepted sense tion —what other would be in a accordingly, terms of the indictment and position, that would have a motive to lower statute from which it is drawn have that bid one hundred dollars so it would be the only lowest into person, one stretched and strained notions bid— and that’s Alex Martinez.” that, realistically, are untenable. State, Bowlin v. 93 Tex.Cr.R. states, oрinion “In es- for the Court (1922), S.W. 396 a handwritten letter was sence, appellants stealing were accused of important an piece of evidence. In his clos- selling it and then ing argument, the prosecutor displayed the completed back to the State in form of letter and asked the jury to notice a differ- printing jobs.” even the Not ence in the handwriting signature through prosеcuting attorneys, its distilled from the balance of the letter. This Court *6 that or essence from either the indictment noted that the exception bill of did not the facts. certify as a fact that such a difference opening jury pan- In his to statement the existed, but if it did appear, legiti- it was el the prosecutor jury mate for chief told the counsel to call to attention it sincе the letter was before the jury for ultimate facts the were their State examination. paper, that Martinez ordered al- Senate ready purchased, supplied printing be to a case, In the instant the written bids company doing job for its use in the as a evidence, were in appear in and the record. Stoner, subcontractor for for which Stoner The bid from appears to have been the of billed State Texas changed $2,334.00 $2,234.00 from to printing of both the cost and the cost question “2” in appears to be different from charges the —“and lie of this therein the case.” appear “2”s which on the bid. Under circumstances, argument prosecuting the calling final the attention assistant to this difference was in the attorney nature of a by telling jury, concluded the “If of, summation or a reasonable deduction you paid the for that believe State twice from, the evidence. paper, guilty; you then it is if don’t think they did or if we have don’t believe event, any appellants failed to doubt, proved you beyond it to a reasonable press objection point procur the of concluding guilty.” are not In his ing an ruling. advеrse Mayberry v. summation, prosecutor the chief reiterated (Tex.Cr.App. 1976); S.W.2d 80 Nichols v. through sole S.W.2d 462 the theme that her (Tex.Cr.App. 1974). After the trial court instructed the proprietorship, had used that State charged for and then for the rized to really act for the owner occurred
paper on subsequent printing contracts.1 when Stoner and received claimed job in an рrinting amount theory fundamental reason the al- she, con- paper which included cost of the leged in the supported indictment is not trary specifications for and contract facts, them, but is at variance with case, job, supplied. It is a do the had not that, simply stated, paper purchased argued persistent- as the State asserted from distributor moved that loсa- and, ly jury, paying to the twice for the same printer tion to the of with the it, pro- material on was of was then delivered to the theft reproduction room, printshop, Senate issued to ceeds of the warrant State ordered, be used for purpose job, in an amount Stoner for the times, and delivered. pur- At all from its represented of the cost Senator, chase until delivered be- Accordingly, the fatal variance care, custody, was in the control and re- proof, tween I would management Indeed, of Martinez. that is verse of re- conviction and precisely what the indictment mand the cause. proved. The fallacy theory of the indict-
ment and the formulation the Court is the unique capacity status of Mar- reproduction
tinez as
room, or printshop, of the Texas Senate is
ignored. in finding
obtained and controlled “without the own-
еr’s effective It is upon consent.” true that FDIC, of Franklin receiver paying paper, State “owned” Bank, Appellant, acquisition, disposition control the instance all at of Mar- acting scope tinez within the his authori- ASSURANCE AMERICAN HOME ty. Indeed, in correctly its brief State COMPANY, Appellee. asserts, clearly “The evidence shows that 17295. No. Martinez ordered the under agent his authorization аs an Appeals Court of Civil and, further, Texas” “Martinez then or- (1st Dist.). Houston dered the being stored at Lone Star Paper April Company to be delivered to Whitley *7 Thus, for the printing of the newsletter.” Rehearing Denied his capacity agent Mar- tinez at once obtained and exercised control
over the paper gave effective consent
of the State to do what was done with it.
As deception precluded I see
effective legally consent of a autho- However, supply paper. 1. The shorthand A.M.P. rendition the facts followed expanded that, his Graphics paid somewhat outline of them as fol- was for both lows: What we later found happened was “Basically out supplied happened what is that . paid State and the State got charged the State of Texas twice for already; Graphics for was State several thousand dollars worth of purchased by happened already What Arts it had was that A.M.P. contracts, .” submitted bids on some . and Senate. . some them, Graphics about six of in which A.M.P. paid by of Texas to both