In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-13-00434-CR
DANIEL RAY GARCIA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 242nd District Court Hale County, Texas Trial Court No. B19425-1303, Honorable Edward Lee Self, Presiding
September 24, 2014
MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, Daniel Ray Garcia, was indicted for the offense of theft.1 A jury
convicted appellant of the indicted offense and sentenced him to nine months in a State
Jail Facility (SJF) and assessed a fine of $5,500. Appellant has perfected his appeal
and contends that (1) the evidence was insufficient to support the jury’s verdict, and (2)
the trial court committed reversible error in allowing evidence of an extraneous offense.
Disagreeing with appellant’s contentions, we will affirm. 1 See TEX. PENAL CODE ANN. § 31.03(a), (e)(4)(A). (West Supp. 2014). Factual and Procedural Background
The events leading to appellant’s indictment involve appellant’s purchase of parts
and labor for two semi-trucks from Tony Wilkins, doing business as WesTex Enterprises
in Plainview, Texas.2 The first purchase occurred October 26, 2012, and was for a total
of $2,237.57. This purchase was for a “wet kit,” which was described as a part of the
power take off (PTO) assembly on the semi-truck that allowed the driver to unload the
load being carried by the truck. In payment, appellant issued a check to WesTex for the
total amount of the purchase. The testimony at trial reveals that the check was a “hold
check,” meaning WesTex was to hold the check for 30 days. This agreement was
written on the invoice issued at the time of the transaction. During the trial, there was
disagreement as to when appellant was to have paid the amount of the invoice.
However, after the 30 day agreement had passed on December 12, 2012, Wilkins
caused the check to be deposited in his bank and it was returned “Non Sufficient
Funds.”
Prior to the time the first check was deposited, on November 9, 2012, appellant
returned to WesTex to acquire a second PTO unit for a different truck. The total amount
of this transaction was $3,227.50. Appellant testified that Wilkins agreed to again hold
his check; however, Wilkins testified there was no agreement to hold the second check.
As opposed to the first invoice, the invoice for the second transaction contains no
notation that the check was to be held for any period of time prior to presentment for
payment. The check was deposited for collection and, on November 16, 2012, Wilkins
was notified that there were not sufficient funds in the account to cover the amount of
2 The offenses were aggregated pursuant to TEX. PENAL CODE ANN. § 31.09 (West 2011).
2 the second check. Wilkins testified that he attempted to contact appellant in an effort to
collect the funds owed on the second check. However, no payments were ever made
and, at trial, appellant testified that he had not paid anything on either check.
On January 3, 2013, Wilkins had a demand letter sent to appellant demanding
payment for both checks within ten days. Sometime in January, Wilkins spoke to
appellant, who agreed to make payments of $500 per week on the checks. However,
no payments were ever made to Wilkins. The checks were eventually forwarded to the
District Attorney’s office of Hale County for collection. A notice letter was sent by the
District Attorney’s office to appellant at 1108 14 th Street, Seagraves, Texas 79359. This
address was different from the address shown on the checks: P.O. Box 1192,
Seagraves, Texas 79359. The notice letter sent to appellant by the District Attorney’s
office required payment by February 19, 2013, or the matter would be presented to a
grand jury for consideration of an indictment. No payments were made and
subsequently the instant indictment was returned against appellant.
The indictment presented by the grand jury is for theft, “pursuant to one scheme
or course of conduct.” The total amount alleged in the indictment is for merchandise of
a value of $1,500 or more but less than $20,000.
During the State’s presentation of evidence in their case-in-chief, Wilkins testified
about the events that resulted in accepting both checks. As noted earlier, Wilkins
acknowledged that he agreed to hold the first check for 30 days before he would deposit
it for payment. When the first check was deposited, it was dated December 13, 2012.
Wilkins agreed that when the check was initially given to him, it did not have a date on
3 it. Wilkins testified that he had no recollection of putting the date on the check before it
was deposited; yet, from the record, it is clear that Wilkins or a member of his office staff
must have dated the check.
In regard to the second transaction, Wilkins was adamant that there was no
agreement to hold the check. His testimony was that he informed appellant that he had
to be paid and appellant told him that the check was “good to go.” Further, Wilkins
stated that, had there been any agreement regarding the second check, the agreement
would have been noted on the invoice. The invoice was introduced in evidence and
contained no notation that the check was to be held or that there was any agreement
regarding the check.
At the conclusion of Wilkins’s testimony, the State called Stacy Potter, the chief
operating officer for First United Bank, the bank where appellant had his checking
account. Appellant objected to the State’s calling Potter as a witness because she was
not listed on the witness list provided by the State. After hearing arguments about the
matter, the trial court sustained the objection. Following the trial court’s ruling, the
State rested its case-in-chief.
Appellant then moved for an instructed verdict. The trial court denied the motion
for instructed verdict and appellant proceeded to introduce testimony.
Appellant then testified in his own defense. Appellant maintained throughout that
he intended to pay for the parts and labor involved in both transactions. As to the first
check, appellant testified that he asked for time to get the money together for the first
“wet kit.” Further, appellant contends that there was no mention of holding the check for
4 only 30 days, and that he did not see the notation on the bottom of the first invoice that
indicated the 30 day limit. Appellant’s testimony was that Wilkins would hold the check
until appellant started working and was able to make some money to pay for the parts.
Further, appellant agreed that he still owed Wilkins the money and had not made any
payments toward the amount owed on the first check.
In regards to the second transaction, appellant testified that he told Wilkins he
had only hauled one load and did not have the money. According to appellant’s
testimony, Wilkins agreed that he would hold the check and appellant could take care of
it and the first check when he got on his feet. At that time, appellant would clear up both
checks.
Appellant further testified that he did not find out that both checks had been
returned for insufficient funds until sometime in early January 2013. According to
appellant’s testimony, he never received the letter from the District Attorney’s office
advising him that both checks had been turned over to the District Attorney’s office for
collection or prosecution. In his testimony, appellant stated he found out about both
checks being returned for insufficient funds when Wilkins called him in early January
2013. At that time, he offered to pay $500 per week on the checks until they were paid.
Appellant testified that he owed the money to Wilkins and that he had no intent to
defraud Wilkins or pass him any bad checks when he presented the two checks to
Wilkins.
During cross-examination, appellant admitted that his mailing address in
Seagraves was P.O. Box 1192, and that he regularly got mail at that address. Further,
5 he testified that he checked the mail box on a routine basis. However, appellant denied
recalling that he received statements from his bank at that address. Specifically,
appellant denied receiving a notice in the middle of September that his account was
overdrawn. When asked if he was aware that the bank account in question had been
overdrawn continuously since September 9, 2012, appellant averred he was unaware of
that fact.
Later, during further cross-examination of appellant, the State asked about his
previous conviction for theft of service by check. In that examination, the State
introduced State’s exhibit 6, a certified copy of a May 28, 2009 judgment revoking
community supervision for the offense of theft of service by check and sentencing
appellant to six months in the Gaines County Jail. Appellant’s trial counsel objected to
the exhibit on the basis of Texas Penal Code section 31.03(c)(1), and that the prior
offense in question was not a recent transaction and, therefore, not relevant to the trial.
See TEX. PENAL CODE ANN. § 31.03(c)(1).3 The trial court overruled the objection.
Appellant then recalled Wilkins for further testimony. Wilkins testified that he
would consider it rare to hold a check or accept a post-dated check in payment for parts
and labor. When questioned about his affidavit to the District Attorney’s office, that the
check was presented to the bank within 30 days after receipt, Wilkins testified that it
was presented within 30 days after appellant had agreed to pay the check. Upon
reexamination by the State, Wilkins testified that any time he agrees to hold a check
there is a notation on the invoice, as shown on State’s exhibit 3, the first invoice. After
the State concluded its reexamination of Wilkins, appellant rested his case.
3 Further reference to the Texas Penal Code shall be by reference to “§ ____” or “section ____.”
6 The State then called Stacy Potter, chief operations officer at First United Bank,
as a rebuttal witness. Appellant objected that Potter had not been listed as a witness in
discovery. The trial court overruled the objection, noting that Potter was being called as
a rebuttal witness.
Potter testified that, as the chief operating officer for the bank, she was custodian
of the records. She identified S-1 and S-2, the checks at issue, as checks written on the
account of appellant. Potter testified that the address for the account those checks
were written on was P.O. Box 1192, Seagraves, Texas, and that all notices regarding
the account status were mailed to that address. Further, Potter said that when an
account goes into overdraft, the accountholder is notified via mail. A review of the
appellant’s account history showed that the account was in continual overdraft status
since September 5, 2012. The bank mailed four notices of overdraft status to the
account holder at the address indicated plus the account’s overdrawn status was noted
on bank statements that were generated during that time period. According to Potter,
the account was finally charged off on October 23, 2012.
The State and appellant then closed the presentation of evidence. The trial court
presented a proposed court’s charge to counsel for each side. The State and appellant
voiced no objections to the trial court’s charge to the jury. Accordingly, the jury was
read the charge and final arguments were given. Subsequently, the jury found
appellant guilty of the charge and, after hearing punishment evidence, assessed his
punishment at confinement in an SJF for nine months and a fine of $5,500.
7 Appellant has perfected his appeal and presents three issues for consideration.
By his first issue, appellant contends that the trial court erred in overruling his motion for
an instructed verdict. In his second issue, appellant contends that the evidence was
insufficient to support the jury’s verdict. In his third issue, appellant contends that the
trial court erred in admitting the evidence of the prior extraneous act. We will consider
appellant’s first and second issue together.
Instructed Verdict and Sufficiency of the Evidence
At the close of the State’s case-in-chief, appellant moved for an instructed
verdict. The trial court denied the motion. Appellant contends that the trial court’s
denial was error. Appellant’s contention does not take into consideration the rule that a
motion for instructed verdict is actually a challenge to the sufficiency of the evidence.
See Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993). Accordingly, we will
proceed to consider all of the evidence in connection with appellant’s challenge to the
sufficiency of the evidence.
Standard of Review
In assessing the sufficiency of the evidence, we review all the evidence in the
light most favorable to the verdict to determine whether any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State,
323 S.W.3d 893, 912 (Tex. Crim. App. 2010). “[O]nly that evidence which is sufficient in
character, weight, and amount to justify a factfinder in concluding that every element of
the offense has been proven beyond a reasonable doubt is adequate to support a
8 conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful
that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no
higher standard of appellate review than the standard mandated by Jackson.” Id.
When reviewing all of the evidence under the Jackson standard of review, the ultimate
question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07
n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d
404, 448–50 (Tex. Crim. App. 2006), as outlining the proper application of a single
evidentiary standard of review). “[T]he reviewing court is required to defer to the jury’s
credibility and weight determinations because the jury is the sole judge of the witnesses’
credibility and the weight to be given their testimony.” Id. at 899.
As an appellate court we conduct our sufficiency review pursuant to a
hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.
App. 1997). Such a charge would accurately set forth the law, as authorized by the
indictment, but neither unnecessarily increases the State’s burden of proof nor
unnecessarily restricts the State’s theories of liability, yet adequately describes the
particular offense for which the defendant was tried. See id.
A hypothetically correct charge requires the State to prove that 1) appellant, 2)
pursuant to one scheme or course of conduct, 3) unlawfully appropriated, 4)
merchandise of the value of $1,500 or more but less than $20,000, 5) from Tony
Wilkens, the owner, 6) without the effective consent of the owner, 7) by issuing or
passing checks when he did not have sufficient funds on deposit for payment.
9 Analysis
Appellant contends that, because the first check was a post-dated check, the
transaction was an extension of credit and, therefore, the appropriation of the property
was not unlawful. Appellant’s contention is grounded in the fact that Wilkins agreed to
hold the first check for 30 days. Accordingly, the act of holding the check is an act of
extending credit and, therefore, there can be no unlawful appropriation of Wilkins’s
property. Appellant then concludes that because the indictment alleged theft pursuant
to one scheme or course of conduct but proved only one check, the proof was
insufficient. See Geick v. State, 349 S.W.3d 542, 548 (Tex. Crim. App. 2011).
The State counters that, while the check was post-dated, appellant knew he had
been overdrawn for an extended period of time and the entire episode was the
perpetration of deception on the owner. We need not rely upon the State’s theory for
the reasons stated below.
For purposes of argument, we will accept appellant’s proposition that the first
check was simply an extension of a form of credit that will not support a theft conviction.
However, even accepting that proposition, it does not change the outcome of this
matter.
We do not agree with appellant’s contention regarding the application of Geick.
Geick involved an indictment for theft that alleged that the appellant had appropriated
the property of the owner by deception. Id. at 543. There was no proof offered during
the trial as to how the appellant had acquired the bulldozer in question. When the case
was submitted to the jury, the application paragraph of the jury charge did not limit the
10 conviction to the offense of theft by deception. Id. at 544. After reviewing the number of
different ways to commit the offense of theft, the Court of Criminal Appeals noted that,
in Geick, the State needlessly pleaded a more specific manner of commission of the
offense. Id. at 547. This then became the law as authorized by the indictment and,
accordingly, the law the State must prove. Id. at 548. Because there was no evidence
of deception, the State’s proof was insufficient. Id.
We are not faced with the same conundrum that was present in Geick. The
manner and means alleged to commit the theft in question was “by issuing or passing
checks, when the defendant did not have sufficient funds in or on deposit” with the
bank. The indictment alleges a continuing scheme or course of conduct regarding theft
by issuance of an insufficient check. We, accordingly, have only one manner and
means of commission of the offense of theft. Instead, we have an aggregate amount
alleged to have been stolen of $1,500 or more but less than $20,000. The record
before this Court indicates that one check, S-1, was for $2,237.57, and that the second
check, S-2, was for $3,227.50. Thus, the total of the two checks was within the amount
alleged as stolen in the indictment; and, more importantly, both checks individually are
within the range.
As the Court of Criminal Appeals stated in Lehman v. State, 792 S.W.2d 82, 84
(Tex. Crim. App. 1990), “once the defendant has been given proper notice that he must
prepare to defend himself against a charge that he has stolen a certain ‘bundle’ of
property, there is no reason that he should be acquitted if the evidence shows him guilty
of stealing enough of the ‘bundle’ to make him guilty of the offense charged.” The
purpose of the aggregation statute is to allow multiple thefts committed pursuant to a
11 common scheme or continuing course of conduct to be considered together to
determine the grade of the offense. See § 31.09; De La Fuente v. State, 264 S.W.3d
302, 318 (Tex. App.—San Antonio 2008, pet. ref’d) (mem. op.). When the allegation is
theft of an aggregated amount pursuant to one scheme or continuing course of conduct,
the State need not prove theft of each individual item appropriated. See De La Fuente,
264 S.W.3d at 318 (citing Lehman, 792 S.W.2d at 84). The evidence is sufficient if the
State shows illegal appropriation of property sufficient to meet the aggregate value
alleged. See id. at 319. We, therefore, conclude that the evidence is sufficient to
support the jury’s verdict. Appellant’s first two issues are overruled.
Extraneous Offense
Appellant’s final issue contends that the trial court committed reversible error
when it admitted proof that he had been previously convicted for the offense of theft by
check during the guilt-innocence stage of the proceeding. We disagree for the reasons
set forth below.
Prior to addressing appellant’s contentions regarding the propriety of the trial
court allowing proof of appellant’s prior conviction to come before the jury during the
guilt-innocence stage of the proceeding, we must address the State’s contention that
this issue has not been properly preserved for appeal. To address this issue, we turn to
the record of the trial.
The record reflects that when the State first broached the subject of appellant’s
prior conviction for theft by check, trial counsel made the following objections to
introduction of the conviction:
12 Your Honor, first of all, I would object for two reasons, the first one being that the State, I do not believe, adequately provided me notice of this offense in violation of my motion in limine which was granted by the Court. Secondly, Your Honor, I believe that this information is so far remote in the past that it has no relevance or bearing on the current situation.
The trial court overruled the objections and the State again began questioning
appellant. After a few questions, the State offered S-6, a certified copy of a judgment
from the 106th District Court of Gaines County, Texas. Whereupon, appellant’s trial
counsel again urged his objection in the following language:
I am going to renew my objection under Penal Code 31.03(c)(1) in that, again, this evidence is not a recent transaction and therefore it’s not relevant to these proceedings.
The trial court then overruled the objection. The Texas Penal Code section referred to
by trial counsel provides as follows:
(c) For purposes of subsection (b):
(1) evidence that the actor has previously participated in recent transactions other than, but similar to, that which the prosecution is based is admissible for the purpose of showing knowledge or intent and the issues of knowledge or intent are raised by the actor’s plea of not guilty; § 31.03(c)(1).
Appellant’s issue before this Court is couched in terms of Rule 404(b) of the
Texas Rules of Evidence. See TEX. R. EVID. 404(b).4 In reading appellant’s brief, it is
clear that the argument put forth is that, as to the extraneous evidence offered by the
State, its relevancy value was small when compared to the inflammatory or prejudicial
4 Further reference to the Texas Rules of Evidence shall be by reference to “Rule __.”
13 potential. Appellant’s trial objection was not a Rule 404(b) objection. It was a specific
objection under the Texas Penal Code.
It is well settled that to preserve an issue for appeal, there must be a timely and
specific objection to the evidence. See TEX. R. APP. P. 33.1(a)(1)(A). Further, the
complaint on appeal must comport with the objection made at trial. See Yazdchi v.
State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014). In that connection, an objection
pursuant to one legal theory will not support an issue on a different legal theory on
appeal. Fabela v. State, 431 S.W.3d 190, 195 (Tex. App.—Amarillo 2014, pet. dism’d)
(citing Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990) (en banc)).
The issue presented as appellant’s third issue was not properly preserved for
appeal. The trial court never had the opportunity to address any of appellant’s concerns
regarding Rule 404(b). Instead, the objection relied upon section 31.03(c)(1) for the
proposition that the extraneous offense was too remote. Accordingly, nothing has been
preserved for our consideration. TEX. R. APP. P. 33.1(a)(1)(A). Appellant’s third issue is
overruled.
Conclusion
Having overruled appellant’s issues, we affirm the judgment of the trial court.
Mackey K. Hancock Justice
Do not publish.