Home/Court of Criminal Appeals of Texas/Bruner v. State

Bruner v. State

463 S.W.2d 205, 1970 Tex. Crim. App. LEXIS 1200
CourtCourt of Criminal Appeals of Texas
DecidedSeptember 23, 1970
Docket42629
StatusPublished
Cited by23 cases

This text of 463 S.W.2d 205 (Bruner v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bruner v. State, 463 S.W.2d 205, 1970 Tex. Crim. App. LEXIS 1200 (Tex. 1970).

Opinion

OPINION

ONION, Judge.

The offense is a violation of the Securities Act (Article 581-29, Vernon’s Ann. Tex.Civ.St.); the punishment, a $2500 fine.

Omitting the formal parts, the first count of the indictment reads as follows:

“ * * * that one R. E. Bruner on or about the 23rd day of May, A.D. 1967, and anterior to the presentment of this indictment, in the County and State aforesaid, did then and there unlawfully engage in the business of a dealer in securities, and was then and there a dealer in securities by selling, offering for sale, soliciting subscriptions to and orders for securities, and did then and there sell and offer for sale to Dennis E. Owens and did then and there solicit of and from Dennis E. Owens a subscription to and order for a certain security, to wit:
“an investment contract and profit-sharing agreement wherein the said R. E. Bruner represented and agreed on or about the 23rd day of May, A.D. 1967, with the said Dennis E. Owens that he, the said Dennis E. Owens, a purchaser of said security would be entitled to an interest in the profits of National Marketing Association, in that a certain amount of the Terrific Products Co. Cleaning Concentrate purchased for the said Dennis E. Owens at a 50% discount of retail price in consideration for the payment by the said Dennis E. Owens of $1,350.00 to the said R. E. Bruner would be sold and caused to be sold by National Marketing Association for the benefit of the said Dennis E. Owens and the said Dennis E. Owens would receive a 50% cash profit on said sale; and the said R. E. Bruner further promised, represented and agreed with the said Dennis E. Owens that he, the said Dennis E. Owens, as the purchaser of said security would be further entitled, in consideration for the payment of said $1,350.00 by the said Dennis E. Owens to the said R. E. Bruner to a portion of monies to be obtained by National Marketing Association and its agents through the sale of securities to other such persons thereafter who were to be invited by the said Dennis E. Owens to free dinners provided by National Marketing Association for solicitation of such investments by National Marketing Association and its agents, and to a portion of monies to be obtained by National Marketing Association and its agents through the sale of securities to each and every suceeding invitee of the said Dennis E. Owens invitees in like manner thereafter:
“and said security was issued after September 6, 1955, and was then and there not registered by notification by and with the Securities Commissioner of the State of Texas, and said security was then and there not registered by coordination by and with the Securities Commissioner of the State of Texas and then and there no permit for the sale of said security had been granted by the Securities Commissioner of the State of Texas, all as is provided by law in such cases and the said security was not then *207 and there a duly registered security, duly registered as such by and with the Securities Commissioner of the State of Texas * 1

The second count charged the appellant with selling and offering for sale a security without being a registered dealer.

Both counts were submitted to the jury and the appellant was found guilty under the first count of the indictment.

We are confronted at the outset with appellant’s contention that the evidence is insufficient to sustain the conviction since the agreement or transaction involved is not a “security” within the meaning of the Texas Securities Act. Our problem is compounded since the facts were not developed as well as they might have been, and much of the direct examination of the complaining witness was by use of leading questions which only served to confuse rather than clarify the transaction involved.

Dennis Owens, an oil and gas well tester, related that at the invitation of a friend (named Thompson) he attended several dinner parties at a fashionable Dallas restaurant given by the National Marketing Company where the guests were entertained by an after dinner speaker and merely asked to sign a card if they were interested in the investment program of the company.

On May 23, 1967, Owens testified he was contacted by a man whom he believed to be the appellant and that later on the same date the appellant and another employee of the National Marketing Company appeared at his office in Dallas and demonstrated to him and his secretary a soap product of the Terrific Products Company, Inc. for whom National Marketing Association was exclusive sales agent and discussed with him the “investment contract” of the company. He related that appellant told him he could invest $300 or more, but that an investment of $1350 would place him in a “higher bracket” as far as dividends and profits were concerned, at a level of “fifty percent”; that in addition, while he would be obligated to endeavor to bring guests to dinner parties given by the company, he would share in “profits and dividends” as a result of the investment made by any of such guests as well as the investments made by future invitees of his guests. Owens further related when he protested that he had a business and did not want to sell soap door-to-door he was assured he did not have to do so for the soap could be disposed of through the people he would bring to the company dinners. 2

It also appears Owens understood he was to also share generally in the “profits and dividends” of the company, 3 and if he was *208 not satisfied he could have his money refunded within a period of 90 days.

On the date in question Owens signed the following “application and agreement”:

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Cite This Page — Counsel Stack

Bluebook (online)
463 S.W.2d 205, 1970 Tex. Crim. App. LEXIS 1200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bruner-v-state-texcrimapp-1970.