Fernandez v. State

479 S.W.3d 835, 2016 Tex. Crim. App. LEXIS 2, 2016 WL 146367
CourtCourt of Criminal Appeals of Texas
DecidedJanuary 13, 2016
DocketNO. PD-0123-15
StatusPublished
Cited by71 cases

This text of 479 S.W.3d 835 (Fernandez 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
Fernandez v. State, 479 S.W.3d 835, 2016 Tex. Crim. App. LEXIS 2, 2016 WL 146367 (Tex. 2016).

Opinions

KELLER, P.J.,

delivered the opinion of the Court

in which MEYERS, KEASLER, HERVEY, ALCALA, RICHARDSON, YEARY and NEWELL, JJ., joined.

We granted appellant’s petition for discretionary review to determine whether a public servant commits theft by deception when -he purchases an airline ticket for county-approved travel with a county credit card but later uses the voucher resulting from the cancellation of the ticket for personal .travel, without correcting the impression that the ticket would be used for county-approved business. We answer that question in the affirmative, and, consequently-,- we affirm the court of appeals.

I. Background

Appellant James Fernandez was a Justice of the Peace in Val Verde County in 2012. On February 6, 2012, appellant directed his chief deputy clerk, Veronica Mo-jica, to make travel arrangements for him to attend a conference in Orlando in June 2012. Mojica booked a plane ticket for appellant on a Southwest Airlines flight for June 20, 2012. The plane ticket was nonrefundable. Val Verde County policy is to purchase nonrefundable or nontransferable tickets because they are typically cheaper. The total ticket price was $381.60 and was paid for with a county-owned credit card, issued in appellant’s name. County Auditor Frank Lowe testified that he received documentation supporting the county-business nature of the Orlando trip.

On June 11, 2012, after falling ill, appellant instructed Mojica to cancel all .his travel arrangements associated with the June conference, including the Southwest Airlines flight. When Mojica cancelled the Orlando ticket, its $381.60 purchase price was converted into a ticket voucher for the same amount. This voucher was in appellant’s name and was set to expire on February 5, 2Ó13.

■ In August 2012, appellant asked Mojica for the reservation number associated with [837]*837the June 20 Southwest. Airlines - flight; Once Mojica located the reservation number, appellant told her to call his son and give him the number. Mojica complied. Later that month, Lowe was reviewing the county’s expenses and noticed that the county was nearing its budget limit for travel for the fiscal year. Upon seeing this, Lowe contacted Southwest Airlines and attempted to get a refund for the plane ticket Mojica had purchased, and then cancelled, for appellant. Howéver, when Lowe’s office contacted Southwest Airlines, Lowe learned that the voucher that resulted from the original airline ticket had been used for a flight to Phoenix on August 8, 2012. Lowe testified that he had not been made aware that there was any county business in Phoenix on August 8, 2012, and he had not received any documentation pertaining to’ the- Phoenix trip, as was customary for county-related travel. The flight to Phoenix cost more than the credit obtained from the cancelled Orlando flight, and the amount in excess of the county’s voucher was not paid for with county money. Val Verde County has a personnel policy that prohibits the use of county property for personal use. -

Believing the Southwest Airlines voucher had been used for non-county-related travel, Lowe reached out to the Val Verde County Attorney, who in turn reached out to the Attorney General’s office. The At1 torney General’s office agreed to investigate the use of the Phoenix ticket. On August 27, Lowe informed the Val Verde County Commissioners’ Court that he had discovered a county-purchased plane ticket had been used for non-county-related travel on August 8 and that he had contacted the- Attorney General’s office to open an investigation into the matter. • ■ ■ •

Sometime in August,'after the initiation of the Attorney General’s investigation, appellant attempted to tender payment for the airline voucher to the county auditor’s office, but his tender was refused. After the August 27 Commissioners’ Court meeting, Lowe and Val Verde County Sheriff Joe Martinez met with appellant and another Val Verde Justice of the Peace; Joey Gonzalez, to try to persuade appellant to resign.

Appellant’s son, James Fernandez, Jr., testified in appellant’s defense. Fernandez, Jr. testified that he was the one- who initially suggested that his father use the Southwest Airlines voucher to fly to Phoenix and that at all times appellant intended to repay the county the amount of the voucher. Appellant was convicted' of theft by a public servant by way of deception, and the Fourth Court of Appeals affirmed.

II. Analysis

A. Law

In his sole ground for review, appellant argues that the State failed to prove he induced consent by way of deception at the time he misappropriated Val Verde County’s property (the Southwest Airlines ticket-turned-voucher). Essentially he claims the evidence is insufficient to support the jury’s guilty verdict on the charge of theft by deception.

We review sufficiency complaints under the legal-sufficiency standard enunciated in Jackson v, Virginia.1 We examine the evidence in the light most favorable [838]*838to the verdict and ask whether any rational fact-finder could have found the elements of the charged offense beyond a reasonable doubt.2 If a rational fact-finder could have so found, we will not disturb the verdict o.n appeal.3

Theft is defined as the unlawful appropriation of property with the intent to deprive the owner of the property.4 Appropriation is unlawful if it is, inter alia, without the owner’s effective consent.5 Consent means, “assent in fact, whether express or apparent.”6 Consent is not effective if it is induced by deception or coercion.7

When the State, charges theft by way of deception, it is bound to prove deception.8 Deception, as it is relevant to the case at bar, means, “failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true.”9

To prove theft by deception, the State must show that the owner of the misappropriated property was induced to consent to its transfer because of a deceptive act of the defendant.10 That is, the defendant’s deceptive act must impact the judgment of the. property owner in the transaction.11 It follows, then, that the deception must precede the consent gi12

B. Application

I. When was consent given?-

Appellant contends that the only time consent was given was the county-approved purchase of an airline ticket for him to attend a countyrapproved ‘conference in Orlando. He argues that, because there was no- deception at this juncture, and therefore no deception to affect the judgment of the other, party involved, he cannot be guilty of theft by deception.

But appellant is mistaken as to how many times consent actually, was given. The initial consent given by the county is not the consent that forms the basis of appellant’s theft conviction.

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Cite This Page — Counsel Stack

Bluebook (online)
479 S.W.3d 835, 2016 Tex. Crim. App. LEXIS 2, 2016 WL 146367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fernandez-v-state-texcrimapp-2016.