*1 judgment. judgment (original copy defendant) given was to de- Gary THOMASON, Appellant Dale prior counsel to the enter- defendant added). ing plea.” (emphasis his Texas, Appellee. The STATE of hand, other On the defense counsel’s affidavit No. 915-93. only although
states “practice it is his plea negotiations include sums for restitu- Texas, Court of Criminal tion, Attorney if requires the District it as a En Banc. plea bargain agreement” condition of a Dec. his “records do not indicate that restitution ease,” requested in this he “not does now relayed recall whether this information was (the
to me or not Assistant District Attor- ney),” “relayed any and whether he informa- my regarding tion to client restitution.” added). (emphasis A review of the trial record reveals no taking ap- discussion of restitution in the plicant’s plea. findings The trial court’s fact state that the sums were included in the judgment gave copy and that the State judgment prior counsel defense
applicant entering plea. his trial court requested recommended relief be Applicant denied. has not met his burden to part plea show that restitution agreement.1 parte Empey, Ex 757 S.W.2d at Therefore, relief should denied. Id. majority ignores
Because the the facts and law, established I dissent. CAMPBELL, MEYERS, JJ., WHITE and join this dissent. majority which the defendant is convicted.
1. In the case on which the bases its crime for decision, this Court indicated that as of a 680 n. 16 Martin v. plea bargain may agree pay a defendant resti- Cr.App.1994). than tution to someone other the victim *2 O’Connell, Atty., Bryan Clay- Dist. J.
Tom McKinney, ton, Atty., and Robert Asst. Dist. Austin, Huttash, Atty., for the State. State’s PETITION APPELLANT’S OPINION ON REVIEW FOR DISCRETIONARY BAIRD, Judge. by jury convicted
Appellant was $20,000.00. Tex.Penal Code property over 31.03(e)(5)(B). jury assessed Ann. and a years confinement punishment at six $10,000.00 Ann. fine. Tex.Penal Code Appeals affirmed. 12.33. 05-92-00414-CR, Thomason No. (Tex.App. Dallas, June 1993 WL — 1993) (not granted appel- published). We discretionary petition review de- lant’s for Tex.R.App.P. Rule termine three issues.1 200(c)(3). We will remand.
I. necessary. of the facts is brief recitation employee of Electronic Data
Appellant, an (EDS) Systems charged with theft of at $20,000.00 from in a scheme least EDS invoices for non- appellant which submitted computer equipment. Between Jan- existent uary appellant received and November $518,787.00 totalling as from EDS ten cheeks payment for the invoices. alleged, pertinent
Appellant’s indictment 9,1990 January and Octo- part, that between 22, 1990, appellant: ber intentionally knowingly appropriate^], exercising con- by acquiring and otherwise proper- than real property, trol over other namely: Curren- ty, lawful United States Twenty of at least Thou- cy, of the value ($20,000.00), effec- without the sand dollars Norton, the said Massey, of Charlotte J. tive consent Michael S. Fawer and Jeffie Dallas, property ... owner of said appellant. for finding Appeals erred in that appellant’s grounds The Court of Specifically, for review grant a failure to motion the trial court’s state: require elect a transaction the state to NUMBER ONE. GROUNDS FOR REVIEW: per- rely conviction which finding Appeals erred in The Court of missible. inculpatory statements into the admission of THREE. FOR REVIEW: NUMBER GROUND proper statements ques- evidence was because such failing substantively By address required warnings without the to instruct the were obtained the trial court's refusal tion of offenses, Ap- acting agents Court of by security of law extraneous officers failure, approved thus peals implicitly this enforcement. committing an error. TWO. FOR REVIEW: NUMBER GROUND trial, During the course of tendered an evinces intent the checks not be payment aggregated. the ten checks issued EDS in by appellant. the invoices submitted Individ- Id., slip op. pg. 10. The Court concluded $20,- ually, eight of the ten checks exceeded that because the checks of an were *3 000.00. 31.09, aggregated § theft under the State case-in-chief, election, Id., At the close of the State’s could not be forced to make an 11, appellant require pg. limiting moved to to elect the State at and a instruction was not Id., 11, upon sought required. pg. the check which it to obtain a at n. 5. judge appel- conviction. The trial overruled III. trial, lant’s motion. At the conclusion reasons, judge appellant’s request following the overruled for a For the we believe the limiting jury charge in Appeals holding instruction the con- Court of in indict erred the cerning alleged aggregated extraneous offenses. ment the offense of theft First, § Appeals
under
31.09.
the
of
Court
holdings
contrary
failed to address our
to the
II.
State,
in Whitehead v.
...
record
an of
does
demon-
31.03.
elements
reason,
any,
phrase’s
person,
§
if
strate the
the
under
31.03 are: a
with the
upon
deprive
property,
omission. Based
the record before
intent to
the owner of
un
us,
lawfully appropriates
property,
we cannot conclude that the failure to
without
in
phrase
include the
the indictment
the effective consent of the owner. Freeman
sources,
provides:
§
the conduct
2. Tex.Penal Code Ann.
31.03
the same or several
offense and the amounts
considered as one
(a)
person
commits an offense if he unlaw-
aggregated
determining
grade
the
fully appropriates property with intent to de-
offense.
prive
property.
owner of
the
(b) Appropriation is unlawful if:
appellate
rely
must
4.It
is axiomatic that an
court
(1)
is without the owner’s effective con-
it
apply
legal authority
the correct
when
...
sent.
performing
analysis necessary
the
to resolve a
point
appellant
of error.
In
instant
provides
perti-
3. Tex.Penal Code Ann. 31.09
Appellant’s Brief
cited and relied
Turner.
part:
nent
pg.
Appeals,
How-
before the Fifth Court of
ever,
cite,
are obtained in violation of
the Court of
failed to
discuss
When amounts
pursuant
distinguish
[Chapter
one scheme or
Turner in its resolution of this
Theft]
conduct,
appeal.
continuing course of
whether from
at 51.
State,
grams.”
887 S.W.2d
(Tex.Cr.App.
four hundred
707 S.W.2d
1986)
and,
alleged
showed the
sub-
op.);
Peterson v.
The trial evidence
(plurality
pure
(Tex.Cr.App.1983).
only
grams
18.38
stance contained
645 S.W.2d
additionally alleges
being
Only
amphetamine,
when an indictment
the remainder
adulter-
trial,
property
“pursuant
was taken
to one
that the
At
close of
ants and dilutants.
Id.
conduct,”
continuing
theory
scheme or
course of
charged on a broader
jury
aggregated
charge an
does the indictment
alleged in
indict-
than that
the offense
Whitehead,
See,
theft under
31.09.
ment;
if
permitted to convict
Turner,
376-377; and,
S.W.2d
delivered “a con-
they found the defendant
at 196.
substance, namely amphetamine, and
trolled
[was],
amount of the controlled substance
*4
facially
Although the indictment
weight, including
by aggregate
adulterants
31.03,
charged
§
an offense under
the Court
dilutants,
twenty-eight
grams
and
presumed
attempt
indictment
Appeals
of
the
sufficiency
Reviewing the
of
more.”6 Id.
aggregated
charge
ed to
an
theft under
conviction,
support
to
the
we
the evidence
§
an
of the off
31.09 but omitted
element
sus-
noted that while a conviction
Appeals
of
erred in mak
ense.5 The Court
which is
tained under an indictment
defective
ing
presumption.
such a
reason
Court’s
because it omits essential elements
“continuing
ing that
the absence of the
State,
offense, see,
263
Studer v.
799 S.W.2d
language did not evince
course of conduct”
(Tex.Cr.App.1990), such is not true when the
charge
aggregated
an intent not to
an
theft
facially charges
complete
a
indictment
of-
required appellant
is fallacious because it
presents evidence which
and the State
Rather,
prove
negative.
opposite
a
the
is
theory
a
than that
convicts under
different
facially charges
true: where an indictment
a
Fisher,
alleged.
was not the indictment an judge exposed that he did not wish to be § under offense 31.03 the State theft,” “aggregated it is no conviction for an theory prosecution. was committed to that appellant’s complaint that answer to convic- “aggregated tion for theft” the need obviated IV. election, for an as the Court of held. understanding the indict- 31.09, With Moreover, without the aid of section charged ment the offense of theft under separate appropriation instances of could not aggregated rather than theft under 31.03 of a offense for be considered 31.09, judgment Ap- purposes prosecution under section *5 peals and ease is 31.03(a). is vacated this remanded Consequently, should appellant’s for that Court re-consideration forced to elect the instance of have been points fourth of error.8 third and pro- appropriation upon which it wished to jury. ceed before the Because the trial "WHITE, J., concurs the result. appellant’s judge did not honor demand for election, I would the convic- such an reverse CAMPBELL, J., dissents. further tion in this cause and remand for MEYERS, Judge, dissenting. proceedings in the trial court. In Fisher v. S.W.2d Instead, majority this elects to return (McCormick, P.J., joined by Crim.App.1994) for further cause the Court Clinton, J., J., concurring, dissenting, "White But light consideration in of Fisher. even Campbell, Meyers, participating), JJ. affect assuming that Fisher would somehow imprudently conceived a formula this Court case, disposition of this such a remand is sufficiency deciding for of the evidence as majori- altogether unnecessary. Given charge against measured both the submitted ty’s appellant’s ground for re- resolution of imperfect unfortunate and an indictment. As view, disposition I concur for with which was, sufficiency” “experiment it as this reasons, there is no further factual different equally apparent sphere should be its legal analysis performed to be appellate influence should be confined to an appellate lower court. sufficiency only, court’s measurement question may appro in an Accordingly, I dissent. priate point of error. majori- surprisingly though, the same
Not ty apparatus that fathered the Fisher has implications that Fisher has
now concluded
designated remedy.
beyond its
Some
implications I fear
have come to
these
consequently would
roost in this
State, to restrict Studer v.
S.W.2d
tend
(Tex.Crim.App.1990). My ultimate fear
implications
somehow to
would be
these
ground
charge
Appellant’s
for review is dismissed
that was never
first
convict him
prejudice.
without
ma.de.
(citations